H. N. TILHARI, J. ( 1 ) THIS is plaintiffs second appeal from the judgment and decree dated 16-11-1984 delivered by the additional civil judge (Sri D. Basavaraju) in regular civil appeal No. 31 of 1984, whereby the lower appellate court has dismissed the plaintiffs appeal and an application which was filed and numbered as la. No. Ii in the appeal and affirmed the judgment and decree of the trial court dismissing the plaintiffs claim in o. s. No. 608 of 1981. ( 2 ) THE facts of the case in brief are that the plaintiffs-appellants filed the above mentioned suit for decree declaring that the plaintiffs and defendants are common owners of the suit property and further prayed for the consequential relief of grant or decree for permanent injunction restraining the defendants or any person claiming on their behalf from, obstructing and interfering with the plaintiffs-appellants peaceful possession and enjoyment of the suit property as common passage and for mandatory injunction directing the defendant 1 to remove the katta, latrine and water tank constructed in the said passage so as to make the common passage available and accessible to the plaintiff to pass and repass to his house. ( 3 ) THE plaintiffs claimed that the suit property, namely, the disputed passage has been used as a common passage, bearing No. Cts 4138 of cts ward No. I, measuring 707/9 square yards, situated in bandiwad base at hubli. According to the plaintiffs case, this open space has been in common use for passing and repassing there through by the plaintiffs and defendants. According to plaintiffs case, to the east of the passage in dispute there had been a house of defendant 1 bearing No. Cts 4139 and adjoining to defendants house to the north there are two houses bearing nos. Cts 4140 and 4141 belonging to plaintiffs and according to plaintiffs case this land in dispute was used as a common passage by the plaintiffs and defendants. The defendants have constructed the katta towards the west nearby the road in the common passage and also constructed latrine as well as water tank and because of these constructions obstacles have been created in the plaintiff-appellants right to make use of the common passage to reach their house. The defendants have constructed the katta towards the west nearby the road in the common passage and also constructed latrine as well as water tank and because of these constructions obstacles have been created in the plaintiff-appellants right to make use of the common passage to reach their house. The plaintiffs in Order to reach their house have to go from the west to the east to the end and then have to take turn from the east to west. The plaintiffs claimed the common ownership of the land in dispute and according to them, the defendants have no right to construct the latrine, water tank and katta in the common passage. Plaintiff 2 agreed to take property bearing No. Cts 4141 on usufructory mortgage from the plaintiff 1 and he has paid advance and took possession of the same. The defendants caused obstruction to the plaintiffs to make use of the common passage, so plaintiff 2 also been made a necessary party. The plaintiffs further alleged that defendants have no right whatsoever because the obstruction in the plaintiffs or his tenants user of the disputed passage but defendants openly declare that they will not allow any person to make use of the common passage. As such, the plaintiffs had been forced to file the suit for declaration of their right as common ownership with the defendants and for injunction. ( 4 ) THE defendants denied the plaint case. They also denied that plaintiff 1 and their father allabhax had never been the members of jamakhanwale family or the predecessor of defendants. They also alleged that plaintiffs father bhaxkhan or allabakshakhan had never been the son of husenkhan and therefore the claim of the plaintiff 1 through his father allabhakshkhan in respect of the suit property or the properties comprised in nos. Cts 4140 and 4141 are baseless and illegal and plaintiffs had no right or title in the property through the predecessors of defendants or deceased husenkhan or gorekhan. Thus the defendants denied the plaintiffs right to any of the property. ( 5 ) ON the basis of the pleadings of the parties, the following issues were framed by the trial court:" (1) do plaintiffs prove that the suit property is of common ownership of plaintiff 1 and defendant 1 ? (2) do plaintiffs prove that defendants are causing obstruction in making use of the suit property ? ( 5 ) ON the basis of the pleadings of the parties, the following issues were framed by the trial court:" (1) do plaintiffs prove that the suit property is of common ownership of plaintiff 1 and defendant 1 ? (2) do plaintiffs prove that defendants are causing obstruction in making use of the suit property ? (3) do plaintiffs prove that they are entitled for permanent injunction as prayed for ? (4) do plaintiffs prove that they are entitled for mandatory injunction as prayed for ? (5) do defendants prove that the suit is not maintainable in present form ? (6) do defendants prove that valuation of the suit property made and court fee paid on plaint is not proper ? (7) do defendants prove that this court has no jurisdiction to try this suit ? (8) do defendants prove that they are entitled to compensatory costs of Rs. 5,000/- ? (9) to what decree or Order ?" ( 6 ) THE trial court on consideration of the material evidenceon record has held that plaintiff 1 had failed to establish satisfactorily the source of his title to the suit property and his relationship with gorekhan jamakhanwale and they have failed to establish the common ownership of the suit property. It has referred to the statement of plaintiff 1 that he does not know the name of his genetive grandfather and grandmother and that he does not know that his father had got brothers. The trial court has further referred the statement of plaintiff 1 that he does not know if his father was the son of hussainkhan, one of the descendants of gorekhan jamakhanwale and on this basis the court has held that it is clear that plaintiff cannot be said to be satisfactorily established his relationship with gorekhan jamakhanwale. Having recorded these findings, the trial court held that common ownership had not been established with respect of the property in dispute between the plaintiffs and defendants. Having recorded these findings, the court below held that the plaintiffs were not entitled to the declaration sought as well as to get the decree for injunction. Having recorded these findings, the trial court held that common ownership had not been established with respect of the property in dispute between the plaintiffs and defendants. Having recorded these findings, the court below held that the plaintiffs were not entitled to the declaration sought as well as to get the decree for injunction. It further held that the constructions made by the defendants in their own space that is latrine, water tank and katta, within land or space belonging to defendants and it cannot be said that any obstruction has been caused by defendants to any right of the plaintiff as plaintiff had not been able to establish his common ownership. The trial court rejected the claim for compensatory costs. It may also be mentioned that the trial court rejected the plaintiffs applications i. a. nos. 6 and 7 which were made under Order 26, Rule 9 and Order 13, rules 1 and 2, C. P. C. respectively. For the reasons recorded in the judgment and in brief it took the view as regards local inspection that in view of the decision on merits, the local inspection by the court may not be feasible and it is further mentioned that it will not be out of place to note that on the main merits of case, the plaintiff 1 has not satisfactorily established his case. So, it rejected the application for local inspection and it further took the view, the documents the plaintiff wanted to file would not be of any help with his title of common ownership and so there was no need to allow that application. On this ground, the i. as. 6 and 7 were rejected. Having felt aggrieved from the judgment and decree of the trial court, the plaintiffs filed the appeal and the lower appellate court dismissed the plaintiffs appeal upholding the trial court's finding that the plaintiffs-appellants had failed to discharge the burden which lay upon him to prove that he acquired title to the property in suit. 6 and 7 were rejected. Having felt aggrieved from the judgment and decree of the trial court, the plaintiffs filed the appeal and the lower appellate court dismissed the plaintiffs appeal upholding the trial court's finding that the plaintiffs-appellants had failed to discharge the burden which lay upon him to prove that he acquired title to the property in suit. As admittedly the father of plaintiff 1-appellant was not the descendant of gorekhan jamakhanwale, the lower appellate court further dealing with the contention and the ground that has been urged on behalf of the plaintiffs-appellants before the lower appellate court that the plaintiff perfected his title by adverse possession, has observed that apart from the technical plea to the effect that there is no pleading, it has not been the plaintiffs-appellants case that he has been in exclusively possession of the suit property for 12 years adversely to the interest of the co-owner instead his case has been that he has been a co-owner with the defendants. Therefore, the lower appellate court recorded the findings that in such circumstances, plaintiffs-appellants cannot be held and be said to have perfected titled by adverse possession. With these findings, the lower appellate court dismissed the appeal. It may be mentioned that an application was made before the lower appellate court for permission to withdraw the suit at the appellate stage. The lower appellate court dealing with the application of the appellants observed that in view of the law laid down by the Punjab and Haryana court in the case of Jubedan Begum and others v. Sekhawat Ali Khan, to the effect that once a decree hag been passed by the trial court, then certain rights are do stand vested in the party in whose favour suit is decided and once the suit has been decided, the plaintiff is not entitled to withdraw the suit as a matter of course at any time after the decree is passed by the trial court. It further held that in the present case, the trial court has decided the suit and dismissed it and it had held that the plaintiffs have failed to establish their right title in the suit property. A right had accrued in favour of the defendants by the dismissal of the suit and so plaintiffs-appellants could not be allowed to withdraw the suit at appellate stage. A right had accrued in favour of the defendants by the dismissal of the suit and so plaintiffs-appellants could not be allowed to withdraw the suit at appellate stage. Feeling aggrieved from the judgment and decree of the lower appellate court dismissing the plaintiffs appeal and affirming the trial courts decree, the plaintiffs have come up in appeal before this court. ( 7 ) I have Heard Sri V. Tarakaram, Learned Counsel for the appellants and Sri Suresh S. Joshi, the learned counsel for the respondents. The learned counsel for the appellants fairly submitted that so far as the finding to the effect which has been of the two courts below that plaintiffs-appellants had failed to prove that plaintiffs-appellants father was the son of hussain khan bon of gorekhan is a concurrent finding of fact. Plaintiffs father, the learned counsel submitted may be said to be the fostered son of hussain khan but he was neither a natural born son nor an adopted son of hussain khan as there is no such thing as adoption under muslim law. Sri Tarakaram submitted that even if the father of the plaintiff-appellant was not the son of hussain khan but he was the foster son and he was in joint user of the property in dispute with the defendants-respondents for long, he should have been entitled to the decree for injunction against the defendants restraining them from interferring with the plaintiffs use of the property in dispute. He submitted that no doubt, foster son has got no right by inheritance, etc. , but the joint user has been there and therefore the appellant has been entitled to the decree claimed. Sri Tarakaram submitted that the finding which the lower appellate court has recorded with regard to the adverse possession has been made without any submissions being made by any of the parties. He submitted if the plea had been in the grounds of appeal, unless it was pressed, unless arguments were heard, the lower appellate court should not have recorded that finding. He submitted that no issue was there in the trial court nor a point for determination was framed before the lower appellate court on the question of perfection of title by adverse possession, although no doubt in the grounds of first appeal, the grounds had been taken to that effect. He submitted that no issue was there in the trial court nor a point for determination was framed before the lower appellate court on the question of perfection of title by adverse possession, although no doubt in the grounds of first appeal, the grounds had been taken to that effect. But once this plea was not raised nor pressed before it, it was not open to the lower appellate court to give a decision on that point. Sri Tarakaram further submitted that the appellants had moved an application for being permitted to withdraw the suit at the appellate stage. But the lower appellate court illegally refused to grant that permission to withdraw the suit with liberty to file the fresh one. Taking the view that appellate court is not entitled to grant that permission and in support of his contention, the learned counsel made reference to the decisions of the Allahabad High Court as well as to the decisions of this court in B. H. Radhakrishna v. Guruvanng, and to another decision in the case of Basappa Tippanna Durgannavar v. Bhimappa Ramappa Durgannavar and another. He submitted that the view of the learned lower appellate court that permission cannot be allowed by the court is wrong. He submitted that it was open to the lower appellate court to allow the plaintiffs-appellants to withdraw the present suit with permission to file the fresh suit on different cause of action i. e. , cause of action other than on the basis of which the present suit has been filed and as such the lower appellate court committed an error of law in not granting the permission. ( 8 ) ON behalf of the respondents, the learned counsel Sri Suresh S. Joshi submitted that there cannot be any dispute that the proposition of law made by the learned counsel for the appellants that the finding on the question of source of title recorded by the trial court is a finding of fact that plaintiff has failed to establish that his father was the son of hussain khan and even if the plaintiffs father was the son of hussain khan, he submitted with appreciation to Sri Tarakaram that the foster son has got right by succession in respect of the property of a person whose foster son he claims to be, unless there is a will or any deed of transfer in his favour, which is not the case here. He further submitted as regards the question of adverse possession, the lower appellate court has recorded a finding no doubt, but lower appellate courts judgment does not indicate that any argument advanced at appellate stage. No doubt dealing with point No. 2, the appellate court appears to have taken note of the grounds of appeal and in the grounds of appeal it appear to the lower appellate court that the plea has been raised and met it out. But the judgment does not indicate whether that plea of adverse possession was pressed in arguments. Sri Joshi concedes that it was not open to the appellate court to record the finding on that point without hearing the parties. He submitted that application for permission to withdraw the suit no doubt could be allowed by the appellate court but the appellate court has observed that once the suit has been dismissed and finding has been recorded against the plaintiff on the point of his source of title as owner, that finding no doubt confers a benefit to the appellant. If the findings recorded against appellant on the merits of the case on the issues involved are maintained then it may be open to this court to allow the plaintiff to withdraw his suit or to allow the plaintiff to file a fresh suit on a cause of action other than on which the present suit has been filed. No other point has been urged. No other point has been urged. ( 9 ) THAT as regards considering these contentions, the point that appears in the second appeal for consideration is whether the lower appellate court committed error of law in rejecting the application of the plaintiffs-appellants for permission to withdraw the suit. Order 23, Rule 1, sub-clauses (1), (2), (3), (4) and (5) reads as under:"1. Withdrawal of suit or abandonment of part of claim. (1) at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) an application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) where the court is satisfied, (a) that a suit must fail by reason of some formal defect; or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) where the plaintiff (a) abandons any suit or part of a claim under sub-rule (1); or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) nothing in this Rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw under sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs". ( 10 ) SUB-CLAUSE (1) indicates that power under sub-rule can be exercised at any stage or time since after the institution of the suit. It is also held that the appeal is continuation of the suit. So the power to permit the plaintiffs to withdraw the suit with liberty to file a fresh suit can be exercised even at the appellate stage. When I so opine I find support from the views expressed by the Allahabad High Court in Series of Decisions, Namely, Kamta and another v. Gaya Prasad and others, Kanhaiya and others v. Mst. Dhaneshwari and another, and another decision in the case of Suraj Pal Singh v. Gharam Singh and others, as well as from the decision in the case of Bhagwat Prasad and Others v. Raghunath Prasad and others. In an earlier decision of the division bench of the Allahabad High Court in the case of mst. Afzal Begam v. Mst. Akhari Khanam and others, it has been laid that the appellate court can under Order 23, Rule 1 C. P. C. give permission to plaintiff, whose suit has been dismissed in the first instance, to withdraw the suit and also can grant leave to institute fresh suit. This decision appears to have been followed in the case of suraj pal singh, supra, ( 11 ) THIS court in the case of b. h. radhakrishna, supra, has also held as under:"it is no doubt true that it is not right to allow the plaintiff to start again with a clean slate after he had fought and lost. The appellate court, in proper cases, can grant permission to withdraw a suit with liberty to bring a fresh suit. But the power has to be used sparingly and cautiously. If the plaintiff has failed to conduct his case with due care and diligence, he should not be allowed to commence a fresh suit in Order to avoid the result of his previous negligence to the prejudice of the opposite party". But the power has to be used sparingly and cautiously. If the plaintiff has failed to conduct his case with due care and diligence, he should not be allowed to commence a fresh suit in Order to avoid the result of his previous negligence to the prejudice of the opposite party". ( 12 ) THUS it is clear that the appellate court has got the power to grant permission to withdraw the suit filed. The Punjab and Haryana High Court in the case of jubedan begum, supra, appears to take the view that when once the decree has been passed by the trial court then certain rights are vested in the party in whose favour the suit is decided, as such the plaintiff is not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial court. The Punjab and Haryana High Court does not appears to lay down the blank law to the effect the appellate court has got no power to grant permission to withdraw the suit. What is laid down by the Punjab and Haryana High Court is that once the decree has been passed and certain rights have accrued and vested in the party, then withdrawal of the suit may not be permitted at the appellate stage, as a matter of course, at any time after the decree is passed. The Allahabad High Court in the case of kanhaiya, supra, appears to have laid down the law that appellant has unqualified right to withdraw the suit when rights have accrued to respondents. This being the position of law, I am of the opinion that the appellate court could have permitted the withdrawal of the suit on terms fair to the parties. ( 13 ) AS regards the finding on the question of adverse possession recorded by the lower appellate court, I find that the lower appellate court itself has observed that there has been no pleading to that effect claiming title by adverse possession. It also does not appear that, although the plea taken in the grounds of appeal, that the plea was pressed in argument. It also does not appear that, although the plea taken in the grounds of appeal, that the plea was pressed in argument. The court has only proceeded to examine what has been mentioned in the grounds as it appears from the following observation of the lower appellate court:"it is also pertinent to note that in the appeal memo, the appellant has urged that plaintiff 1 has perfected his title by being in possession of property in his own right and denying the rights of defendants, and their brothers for more than 12 years. This contention also has no force, because, there is no pleading to this effect". it is no where mentioned, the learned counsel for the appellants pressed that plea or ground in the memo of appeal before the appellate court. Once the lower appellate court found that there has been no pleadings as regards the adverse possession, it would have been proper to leave that matter at that stage as it could not consider the matter when there is no plea. Instead the lower appellate court appears to have proceeded to deal with the ground and to record the finding that plaintiff cannot be said to have perfected title by adverse possession. That does not appear to he the way to record the finding, when the plea has not been raised either at the trial court or at the first appellate stage and no issue was there for decision, if the lower appellate court wanted to decide this question, it ought to have called upon the parties to amend the pleadings and framed issues and decided or it could have observed that the plea has not been raised. Therefore, the finding cannot be deemed to be a finding on the decision of the question. That once there was no plea in that regard and no issue had been pressed or it could not be decided at appellate court as submitted by the learned counsel for the appellants and suggested by the learned counsel for the respondents as well. ( 14 ) HENCE, the finding on question of possession does not appears to have arrived at according to law and that finding is set aside. ( 14 ) HENCE, the finding on question of possession does not appears to have arrived at according to law and that finding is set aside. ( 15 ) AS regards application for permission to withdraw the suit and to permit the appellants to file a fresh suit on any cause of action other than the one pleaded in the present case or on which the present case has been filed, instead of remanding the matter to the lower appellate court to consider the application afresh, I think it proper to observe that though at present the appeal on merits has got no force except on the point of permission and the judgment of lower appellate court is modified only to this extent. That subject to the findings recorded by the court below on the pleas raised by the parties which findings are final now between the parties, the plaintiffs will be at liberty to file any suit on the basis of any cause of action other than the one pleaded in the present case. ( 16 ) THE appeal is thus disposed of finally dismissing it on the merits of the case and affirming the findings of the court below on the points on merits relating to the cause of action. The appellants are granted liberty to file fresh suit, if they are so advised on cause of action other than the cause of action on which the present suit had been filed and subject to any defence plea being available to the respondents. The appeal is thus finally disposed of. --- *** --- .