JUDGMENT Madhavan Nair, J. 1. The 3rd defendant is the appellant. The plaintiffs suit was substantially for a declaration of the rights of Plaintiffs Nos. 1 to 4 to the plaint lands and also for delivery of possession. During the pendency of the suit Plaintiffs Nos. 1 to 4 sold their rights, to Plaintiffs Nos. 5 and 6. According to to the plaintiffs, the suit property originally belonged to the members of the Racheryla family and it was purchased by the father of Plaintiffs Nos. 1 to 4, one Hampayya of Idukal, on the 3rd of September 1912 under Ex. A. The case of the defendants is that the property belonged to the family of Pompayya and Mallayya, that they took a sale-deed of it from the Eacherla family in the name of Mallayyas father-in-law, Harupayya of Idukal, that it was a mere benami transaction, that Pompayya and Mallayya were always in possession, that the lands now belong to Defendants Nos. 4 and 5 the children of Pompayya and Mallayya, and that the lands are now being held by the second defendant on a lease given to him by the first defendant as the guardian of the 4th defendant. The 3rd defendant supported the plea of Defendants Nos. 1 to 4 and also stated that the present suit is not maintainable on account of the order passed in O.S. No. 531 of 1918 on the file of the District Munsiffs Court of Bellary. 2. Three questions were argued before me ; (1) that the purchase by Hampayya of Idukal, the father-in-law of Mallayya was a benami transaction ; (2) that Defendants Nos. 4 and 5 are owners of the suit lands by adverse possession and (3) that the present suit is not maintainable. (His Lordship after confirming the finding of the Court below on the first two questions proceeded). 3. 4 and 5 are owners of the suit lands by adverse possession and (3) that the present suit is not maintainable. (His Lordship after confirming the finding of the Court below on the first two questions proceeded). 3. As regards the plea of the 3rd defendant that the present suit is not maintainable on account of the order passed in O.S. No. 531 of 1918, the facts are as follows : The 3rd defendant filed O.S. No. 2 of 1918 on the file of the District Court and attached the plaint lands before judgment; plaintiffs filed a claim petition which was dismissed, they, therefore, filed O.S. No. 531 of 1918 on the 9th of October 1918 for getting the summary order set aside and they filed the present suit on the 8th of July 1919. It will be seen that both these suits were filed within a year of the date of the other on the claim petition. In the present suit there is reference in the plaint to the claim petition and a prayer for a declaration of the rights of the plaintiffs to the plaint lands against all the defendants including the 3rd defendant.. After the institution of this suit, the prosecution of O.S. No. 531 of 1918 was obviously unnecessary when the 3rd defendant took the objection that the present suit was not maintainable. O.S. No. 531 of 1918 had already been filed against him and the plaintiffs, therefore, withdrew that suit (O.S. No. 531 of 1918.) It is the order passed when it was withdrawn that is relied upon by the 3rd defendant as a bar to the present suit. The decree, Ex. 44, giving permission to the plaintiffs to withdraw the suit does not say whether it was with liberty or without liberty to bring a fresh suit. As it does not dismiss the suit, I do not think that the plaintiffs are precluded from agitating the question raised in O.S. No. 531 of 1918 in this suit. No doubt under Order 23 when a plaintiff withdraws a suit without the permission of the Court, he shall be precluded from instituting fresh suit ; but this does not prevent the trial of a subject-matter so long as such trial is not affected by the principle of res judicata. As Ex. No doubt under Order 23 when a plaintiff withdraws a suit without the permission of the Court, he shall be precluded from instituting fresh suit ; but this does not prevent the trial of a subject-matter so long as such trial is not affected by the principle of res judicata. As Ex. 44 shows that there was no final adjudication of the rights forming the subject-matter of that suit, I think that the plaintiffs may claim that the summary order passed on their claim petition should be set aside in the present suit. The declaration of title claimed by the plaintiffs in this suit amounts to a setting aside of the order on the claim petition. I have already stated that both this suit as well as O.S. No. 531 of 1918 were filed within a year of the date of the order on the claim petition. The plaintiffs elected to proceed with this suit involving the same relief after dropping the other. I may say in this connexion O.S. No. 2 of 1918, in connexion with which the plaint lands were attached by the 3rd defendant was. dismissed after the filing of this suit. I agree with the learned District Judge that the present suit is not barred by the order in O.S. No. 531 of 1918. 4. I dismiss the second appeal with costs of Defendants Nos. 9 and 10. The memorandum of objections filed by Respondents. Nos. 1 and 2 raises the same question dealt with in the second appeal. It is also dismissed with costs of Respondents. Nos. 9 and.10.