( 1 ) THE unsuccessful plaintiff in a suit for partition and separate possession in O. S. No. 174/84 on the file of Subordinate Judge, tadepalligudem (old O. S. No. 248/83 ESC) had preferred the present Appeal. Respondents 2, 3, 7 and 16 died and it was stated that respondents 4,8,9 to 15, the legal representatives of the aforesaid respondents already on record. The appellant herein/ plaintiff prayed for division of plaintiff schedule properties into three equal shares and allot him 1/3rd share and also prayed for the relief of mesne profits. The suit claim was resisted by respondents/defendants by filing a separate written statement and the trial Court after settling the issues had examined p. W. 1 and P. W. 2 and D. W. 1 to D. W. 11, marked Exs. A-1 and Exs. B-1 to B-26 and ultimately by Judgment dated 25-2-1998 dismissed the suit directing each party to bear their own costs. Aggrieved by the same, the present Appeal is preferred. ( 2 ) SRI C. C. S. Sastry, the learned Counsel representing the appellant/plaintiff would submit that even in the light of the findings which had been recorded by the trial Court the appellant/plaintiff is entitled to the decree of partition. The learned Counsel also would submit that the prior suit filed by him had been dismissed on the strength of a memo filed by him and the said dismissal recorded by the Court on the strength of the memo filed by the appellant/plaintiff in the prior suit would not come in the way in maintaining the present suit for partition. The learned Counsel also would submit that in view of the fact that it is a suit for partition, the sister of the appellant/ plaintiff also is a necessary party, but however she was not impleaded as a party and hence in the interest of justice an opportunity to be given to the appellant/plaintiff to implead her as a party and to agitate his rights by remanding the matter. The learned Counsel also had taken this Court through the respective pleadings of the parties and also the findings recorded by the trial Court and would maintain that having expressed serious doubt about the so-called arbitration award on the strength of which rights are being claimed by the respondents/defendants dismissal of the suit despite the fact that ex. The learned Counsel also had taken this Court through the respective pleadings of the parties and also the findings recorded by the trial Court and would maintain that having expressed serious doubt about the so-called arbitration award on the strength of which rights are being claimed by the respondents/defendants dismissal of the suit despite the fact that ex. A-1 was proved in accordance with law definitely cannot be sustained. ( 3 ) PER contra Sri T. S. Anand, the learned counsel representing the respondents/ defendants would submit that the view expressed by the trial Court that a second suit for partition can be maintained though the prior suit for the self-same relief had been withdrawn even though liberty or leave was not prayed for while withdrawing the prior suit cannot be sustained in the light of the clear language of Order 23 Rule 1 of the Code of civil Procedure. The learned Counsel also would maintain that the said finding was recorded on the strength of the legal position in the light of the provisions of the Code of civil Procedure prior to the amendment Act of the Code of Civil Procedure. The learned counsel also would further contend that it is true that certain findings adverse to the respondents/defendants also had been recorded but the same would not alter the situation in any way since the party who approached the Court for the relief may have to establish his legal right to claim the relief of partition. Even otherwise the Counsel would maintain that the sister is definitely a necessary party to a partition action and the said objection was taken at the earliest point of time but despite the same no steps had been taken to implead the necessary party to the suit and hence the trial Court rightly dismissed the suit on this ground too. ( 4 ) HEARD the Counsel and also perused the respective pleadings of the parties and the oral and documentary evidence available on record. ( 5 ) FOR the purpose of convenience the parties would be referred to as plaintiff and defendants as shown in the trial Court. ( 6 ) THE plaintiff originally instituted the suit o. S. No. 243/83 which was renumbered as o. S. No. 171/84 on the file of Subordinate judge, Tadepalligudem. ( 5 ) FOR the purpose of convenience the parties would be referred to as plaintiff and defendants as shown in the trial Court. ( 6 ) THE plaintiff originally instituted the suit o. S. No. 243/83 which was renumbered as o. S. No. 171/84 on the file of Subordinate judge, Tadepalligudem. It is pleaded in the plaint that the plaintiff and his elder brother late Ramabhadraraju are the two sons and their sister Venkata Subbamma is the only daughter of late Kusampudi Venkataraju and his wife late Venkamma (also called Peda venkamma ). Venkata Subbamma s husband is Chiluvuri Suryanarayanaraju. Mudunuri satyanarayanaraju was late Venkamma s younger brother. Annapurnamma was late satyanarayanaraju s wife. Nandyala somaraju, daughter of Kasiraju and daughter of Sathiraju are brothers of Annapurnamma and Dandu Bangaramma is her sister. Ramaraju is Somaraju s son. Suryanarayanaraju and Bhaskararaju are sathiraju s sons. Venkata Satyanarayanaraju is Suryanarayanaraju s son. Kusampudi venkataraju died about 40 years ago. Venkamma died in May 1982. Ramabhadraraju died 2 years ago. Mudunuri satyanarayanaraju died about 40 years ago. Annapurnamma died on 17-7-1978. Somaraju died about 7 years ago. Mudunuri satyanarayanaraju died issueless and intestate and his widow late Annapurnamma inherited all his properties as his sole heir at law with a limited interest and after the coming into force of the Hindu Succession Act 1956 she became the absolute owner of the properties. Annapurnamma herself died issueless and intestate. The properties left by her were all those which she inherited from her husband. The plaintiff, his sister venkata Subbamma and their mother venkamma as a group claimed the properties by heirship. The plaintiff s elder brother ramabhadraraju did not set up any claim to the properties. Nandyala Satyanarayanaraju, for himself and as guardian of his minor son venkata Satyanarayanaraju, as a group set up rival claim to the properties. Nandyala ramaraju or Kasiraju or Sathiraju or bhaskararaju or Dandu Bangaramma did not set up any claims to the properties. In view of the rival claims set up by the plaintiff, venkata Subbamma and Venkamma as a group and Satyanarayanaraju and Venkata satyanarayanaraju as the other group, to annapurnamma s properties, elders interested in both the groups brought about a family settlement between the two groups and the settlement was reduced to writing as a registered partition deed dated 20-7-1979. In view of the rival claims set up by the plaintiff, venkata Subbamma and Venkamma as a group and Satyanarayanaraju and Venkata satyanarayanaraju as the other group, to annapurnamma s properties, elders interested in both the groups brought about a family settlement between the two groups and the settlement was reduced to writing as a registered partition deed dated 20-7-1979. It is further pleaded that by virtue of the settlement, the immovable properties described in the A Schedule of the partition deed were allotted jointly with equal rights to the group of the plaintiff Venkata Subbamma and Venkamma and the properties described in the B Schedule therein were allotted jointly with equal rights to the group of suryanarayanaraju and Venkata satyanarayanaraju. Each group took separate possession of the properties allotted to it. The settlement evidenced by the partition deed is a fully valid one and binding on both the groups and everyone who had any colour or manner of right in Annapurnamma s properties. The A Schedule properties described in the partition deed which were allotted jointly with equal rights to the group of the plaintiff, Venkata Subbamma and late venkamma and which are relevant for purpose of this suit are described in the schedule annexed to the plaint and are hereinafter referred to as the suit properties. It is further pleaded that while the plaintiff, venkata Subbamma and late Venkamma were jointly in possession of the suit properties as co-owners, disputes arose among them and they could not peacefully enjoy the suit properties. Thereupon, the plaintiff filed a suit against Venkata Subbamma and venkamma for partition and separate possession of his 1/3rd share of the suit properties in O. S. No. 203/79. The plaintiff s son Ramaraju married Venkata Subbamma s daughter, Sadguna Deva Gowri Dhana lakshmi. Sadguna Deva Gowri Dhana lakshmi died in 1974 shortly after giving birth to a female child. Venkata Subbamma and her husband Suryanarayanaraju took the child to their village of Atreyapuram saying that they would look after her and bring her to the plaintiff and his son whenever they wanted to see her. But, as they did not bring the child to them after some time, the plaintiff s son ramaraju filed an original petition against them for custody being given to him of his child along with her gold jewels etc. , in OP. But, as they did not bring the child to them after some time, the plaintiff s son ramaraju filed an original petition against them for custody being given to him of his child along with her gold jewels etc. , in OP. No. 17/80 on the file of District Court, West godavari. Even when the suit in O. S. No. 203/79 and O. P. No. 17/80 were in their initial stages, elderly relations of the parties advised the plaintiff not to press the suit and his son not to press the original petition and to settle their disputes amicably through mediators. The plaintiff and his son willy-nilly agreed and did not press the suit and the original petition respectively and they were dismissed as such. It is also further pleaded that after the suit and the original petition were dismissed, Venkata Subbamma and her husband Suryanarayanaraju suggested that the subject matter of the suit should be referred to the arbitration of some persons and the subject matter of the original petition was not of much significance and it could be settled amicably at any time. The plaintiff did not agree to any arbitration with regard to the subject matter of the suit as there was nothing to be done except its division into three equal shares by metes and bounds and separate possession of one such share being given to him. Venkata Subbamma and her husband suryanarayanaraju won over Venkamma to their side. Nandyala Ramaraju, daughter of suryanarayanaraju and daughter of bhaskararaju took advantage of the situation and put forward claims of late annapurnamma s properties. All of them conspired togetherand selected five persons of their choice as Arbitrators and executed an agreement of reference in their favour for settlement of the so-called disputes among them regarding the properties of late annapurnamma. The plaintiff never agreed to the selection of the five persons as arbitrators nor subscribed his signature to the agreement of reference to Arbitrators nor did he take any part in the arbitration proceedings. The Arbitrators did not also call upon the plaintiff to state his case. They gave no consideration whatsoever to the family settlement which resulted in the partition deed dated 20-7-1979. They made a mere show of arbitration, gave their award and filed it into the Court in O. P. No. 74/79. The Arbitrators did not also call upon the plaintiff to state his case. They gave no consideration whatsoever to the family settlement which resulted in the partition deed dated 20-7-1979. They made a mere show of arbitration, gave their award and filed it into the Court in O. P. No. 74/79. They had impleaded as respondents to the O. P. only the persons who gave them the agreement of reference for arbitration. In the o. P. an uncontested order and decree were passed on 7-2-1980. The plaintiff submits that as he was not a party to the arbitration proceedings orthe O. P. the orderand decree do not in any manner affect his rights under the settlement evidenced by the partition deed dated 20-7-1979 and his right to a 1/3rd share of the suit properties is fully in-tact. After the order and decree were made in o. P. 74/79, Venkata Subbamma and her husband Suryanarayanaraju got gift deeds executed clandestinely by Venkamma in favour of them on 27-3-1980 in respect of the properties purported to have fallen to her share under the order and decree. ( 7 ) IT is also further pleaded that Venkamma was very old, purblind, ignorant and illiterate. She was a mere tool in the hands of Venkata subbamma and Suryanarayanaraju. In addition she was badly ill and in expectation of death at the time of the execution of the gift deeds. In fact, she died in May 1982. The gift deeds are the result of fraud played on and misrepresentation made to her by Venkata subbamma and Suryanarayanaraju. Soon after the gift deeds were executed, Venkata subbamma and Suryanarayanaraju sold away the properties covered by them. After the order and decree were made in O. P. No. 74/79, Nandyala Ramaraju, daughter of suryanarayanaraju and daughter of bhaskararaju sold away the properties purported to have respectively fallen to their shares under the order and the decree. The properties which Venakata Subbamma, her husband Suryanarayanaraju, Nandyala ramaraju, daughter of Suryanarayanaraju and daughter of Bhaskararaju sold away comprise the entire properties. By reason of the sales, defendants 1, 2 and 8 are in possession of items 1 and 2. Burra Danamma purchased in item 1 Ac. 0. 40 and she is added as a party to the suit. The properties which Venakata Subbamma, her husband Suryanarayanaraju, Nandyala ramaraju, daughter of Suryanarayanaraju and daughter of Bhaskararaju sold away comprise the entire properties. By reason of the sales, defendants 1, 2 and 8 are in possession of items 1 and 2. Burra Danamma purchased in item 1 Ac. 0. 40 and she is added as a party to the suit. The 3rd defendant is in possession of item 3; defendants 4 and 5 are in possession of item 4; 6th defendant is in possession of item 5 and the 7th defendant is in possession of item 6 of the suit properties. It is also further pleaded that the sales in their favour are of utterly no validity and consequently so far as his 1/3rd share of the suit properties is concerned and they must be deemed to be in wrongful possession of such share belonging to the plaintiff and hence the suit properties have to be divided into the three equal shares and one such share has to be delivered possession to the plaintiff. Items 1 to 5 of the suit properties are paddy yielding lands and each acre of them fetches a net yield of not less than 10 bags of paddy. The plaintiff is entitled to recover the value of his 1/3rd share of such net paddy as mesne profits for the years 1980-81, 1981-82 and 1982-83 and also future profits at the same rate till delivery of possession of his 1/3rd share to him of the properties from defendants 1 to 6. It is stated by the plaintiff that despite repeated demands since the defendants were not agreeable for partition the present suit has been instituted for the relief of partition and separate possession of his 1/3rd share and also the past and future mesne profits. ( 8 ) THE 1st defendant filed a written statement wherein specific objection was taken that all heirs of late Kusampudi venkamma are not impleaded as parties to the suit and as such the suit is bad for non-joinder of parties. The 2nd defendant is not in possession of any of the suit properties and as such the suit is bad for misjoinder of parties also. The 2nd defendant is not in possession of any of the suit properties and as such the suit is bad for misjoinder of parties also. It was also further pleaded that all the properties of Annapurnamma possessed by the date of her death are her stridhana properties and they devolved on late Smt. Kusampudi Venkamma, the sister of late Annapurnamma s husband as late annapurnamma s husband as late annapurnamma died issueless and intestate. Neither the plaintiff, his brother ramabhadraraju and his sister Chiluvuri venkata Subbamma or any other can claim any right in the properties of late annapurnamma by succession or otherwise so long as Venkamma is alive. It is also pleaded that the 1st defendant is not aware of the alleged registered partition deed dated 20-7-1979 between the plaintiff and others and it is not true and valid. It does not confer any rights inthe plaintiff and others who are executants of the said partition deed. The alleged partition is also not true. It was never acted upon. It is not a family settlement and it was not at the mediation of any elders. It is collusive document intended to shelve the arbitration proceedings. Late Venkamma could not have joined in execution of it voluntarily and she must have executed it underfraud, coercion and misrepresentation. Late Smt. Kusampudi Venkamma executed a Muchilika on 15-6-1979 along with Nandyala ramaraju s/o. Somaraju, Nandyala suryanarayanaraju and Nandyala bhaskararaju, sons of Satyanarayanaraju to sri Pasala Venkatachalam, Penmetsa China gopalaraju, Indukuri Kesavaraju, Penmetsa viswanadharaju and Saripalli Krishnamraju for arbitration in regard to the properties of late Annapurnamma and the mediators passed an award on 5-10-1979 which was accepted by all the parties to the arbitration agreement and a decree was also passed in pursuance of the said award in O. P. No. 74/79 on the file of Sub-Court, Eluru. In view of the arbitration agreement dated 15-6-1979 the alleged family settlement dated 20-7-1979 is not valid and the same is void and nonest. The award and the decree in op. No. 74/79 bind K. Venkamma, the plaintiff and other heirs of Venkamma and the plaintiff cannot question the same. Sri Nandyala bhaskararaju sold Ac. 1. In view of the arbitration agreement dated 15-6-1979 the alleged family settlement dated 20-7-1979 is not valid and the same is void and nonest. The award and the decree in op. No. 74/79 bind K. Venkamma, the plaintiff and other heirs of Venkamma and the plaintiff cannot question the same. Sri Nandyala bhaskararaju sold Ac. 1. 00 cents of R. S. No. 391/1 and 328/1 of West Vipparu (items 1 and 2 of plaint schedule) that fell to his share under the award to the 1st defendant under the registered sale deed dated 15-7-1981 and delivered possession of it to the 1 st defendant on 15-7-1981. The 1st defendant got the said land repaired by digging it to a depth of about one foot by spending about Rs. 4. 000/ -. It is further pleaded that the plaintiff withdrew his earlier suit O. S. No. 203/79 accepting the arbitration award. The plaintiff is therefore estopped from questioning the award and filing the suit on the same cause of action and in regard to the same subject matter and for the same relief of partition as in O. S. No. 203/79. The suit O. S. No. 203/79 was not withdrawn on the advise of any elders as falsely alleged in the plaint. The arbitration referred to above was prior to the alleged partition deed dated 20-7-1979, the filing of suit O. S. No. 203/79 and its withdrawal. The plaintiff withdrew the suit as he has no tenable right in the properties of late Annapurnamma and accepting the award. The 1 st defendant is not aware of the allegations in para 9 of the plaint. There is no necessity for any further arbitration as alleged. It is further pleaded that since the alleged partition deed dated 20-7-1979 is subsequent to Muchilika the arbitrators need not consider the alleged partition deed. The plaintiff is aware of the arbitration proceedings throughout and he had acquiesced the same. The Muchilika award and decree in o. P. No. 74/79 are binding on the plaintiff also as he is only a heir of late Venkamma, one of the parties to the said arbitration proceedings. ( 9 ) THE 2nd defendant filed a written statement that his wife Burra Danamma purchased for valuable consideration only ac. 0. The Muchilika award and decree in o. P. No. 74/79 are binding on the plaintiff also as he is only a heir of late Venkamma, one of the parties to the said arbitration proceedings. ( 9 ) THE 2nd defendant filed a written statement that his wife Burra Danamma purchased for valuable consideration only ac. 0. 42 cents of land in R. S. No. 382/1 situate at West Vipparru Village under a registered sale deed dated 29-8-1980 executed by Nandyala Ramaraju s/o. Somaraju and she had been in possession and enjoyment of the same. The 2nd defendant as such is not concerned with the suit claim and the suit is bad for non- joinder of parties. ( 10 ) THE 3rd defendant filed a written statement that he is a bona fide purchaser without notice of any defect in title for valuable consideration from Nandyala people and pedavenkamma s heirs i. e. . Chiluvuri people. He further pleaded that the arbitration proceedings are binding: It was also pleaded by him that the plaintiff has absolutely no legal right of inheritance to the properties of annapurnamma. The particulars originally belonged to Mudunuri Satyanarayanaraju on whose death Annapurnamma inherited and on her death on 17-7-1978 reversion opened and the sister of Mudunuri satyanarayanaraju i. e. , Pedavenkamma is the sole heir. The plaintiff is not at all a heir so long as Peda Venkamma is alive and her dispositions are legally valid and being on all persons concerned. The plaintiff being not a legal heir under Hindu Law, the alleged registered partition deed dated 20-7-1979 only represents the fraud played by the plaintiff and his sister on their aged mother and their pose as legal heirs entitled to partition is unsustainable in law. It was also further pleaded that O. S. No. 203/79 for partition and possession by the plaintiff and O. P. No. 17/80 under Guardians and Wards Act were withdrawn by the plaintiff with eyes wide open as he had no semblance of title to any of the properties. By that unconditional withdrawal of the suit and O. P. at a crucial stage of litigation in recognition of his mother peda Venkamma s undisputed rights over the properties as sole heir under Hindu Law, the plaintiff is not a necessary party under the arbitration proceedings and the Court decree in O. P. No. 74/79. By that unconditional withdrawal of the suit and O. P. at a crucial stage of litigation in recognition of his mother peda Venkamma s undisputed rights over the properties as sole heir under Hindu Law, the plaintiff is not a necessary party under the arbitration proceedings and the Court decree in O. P. No. 74/79. The plaintiff having withdrawn earlier partition suit in O. S. No. 203/79 is legally and equitably estopped to contend contrary in the present suit. The plaintiff cannot approbate and reprobate blowing hot and cold against the bona fide claims for valuable consideration injuring the just interest of purchasers i. e. defendants. The arbitration award and the Court decree on 7-2-1980 in O. P. No. 74/79 and the dispositions made by Venkamma during her life time are perfectly legal and valid and the plaintiff cannot be heard to contend to the contrary. ( 11 ) DEFENDANTS 4 and 5 also filed a written statement more or less on similar lines taking virtually the same stand. It was pleaded that all the properties late Annapurnamma possessed by the date of her death are her stridhana properties and they devolved on late Smt. Kusampudi Venkamma, the sister of late Annapurnamma s husband and late annapurnamma died issueless and intestate. Neither the plaintiff, his brother ramabhadraraju and his sister Chiluvuri venkata Subbamma or any other can claim any right in the properties of late annapurnamma by succession or otherwise so long as Venkamma was alive. Defendants 4 and 5 are not aware of the alleged registered partition deed dated 20-7-1979 between the plaintiff and others and the same is not true and valid and does not confer any rights in the plaintiff and others who are executants of the said partition deed. The alleged partition is also not true and it was never acted upon. It is not a family settlement and it was not at the mediation of any elders. It is a collusive document intended to shelve the arbitration proceedings. Late Venkamma could not have joined in execution of it voluntarily and she must have executed it under fraud, coercion and misrepresentation. It is not a family settlement and it was not at the mediation of any elders. It is a collusive document intended to shelve the arbitration proceedings. Late Venkamma could not have joined in execution of it voluntarily and she must have executed it under fraud, coercion and misrepresentation. Late Smt. Kusampudi venkamma executed a Muchilika on 15-6-1979 along with Nandyala ramaraju son of Somaraju, Nandyala suryanarayanaraju and Nadyala bhaskararaju, sons of Satyanarayanaraju to sri Pasala Venkatachelam, Penmetsa China gopalraju, Indukuri Kesavaraju, Penmetsa viswanadharaju and Saripella Krishnamraju for arbitration in regard to the properties of late Annapurnamma and the mediators passed an award on 5-10-1979 which was accepted by all the properties to the arbitration agreement and a decree was also passed in pursuance of the award in O. P. No. 74/79 on the file of Sub-Court, Eluru. In view of the arbitration agreement dated 15-6-1979 the alleged family settlement dated 20-7-1979 is not valid and it is void and nonest. The award and the decree in O. P. No. 74/79 bind late k. Venkamma, the plaintiff and other heirs of venkamma. The plaintiff cannot question the same. Nandyala Ramaraju sold item 4 of plaint schedule that fell to his share under the award to those defendants under the registered sale deed dated 12-5-1980 and delivered possession of it to these defendants on the same day. It is further pleaded that the plaintiff withdrew the earlier suit O. S. No. 203/79 accepting the arbitration award and therefore he is estopped from questioning the award and filing the suit on the same cause of action and in regard to the same subject matter and for the same relief of partition as in O. S. No. 203/79. The suit O. S. No. 203/79 was not withdrawn on the advise of any elders as falsely alleged in para 8 of the plaint. The arbitration referred to above was prior to the alleged partition deed dated 20-7-1979, the filing of suit O. S. No. 203/79 and its withdrawal. The plaintiff withdrew the suit as he had no tenable right in the properties of late Annapurnamma and accepting the award. The defendants are not aware of the allegations in para 9 of the plaint. There is no necessity for any further arbitration as alleged. The other allegations were denied and specific stand was taken relating to arbitration proceedings and the binding nature thereof. The defendants are not aware of the allegations in para 9 of the plaint. There is no necessity for any further arbitration as alleged. The other allegations were denied and specific stand was taken relating to arbitration proceedings and the binding nature thereof. ( 12 ) THE 6th defendant also virtually had taken a similar stand. The 7th defendant filed a separate written statement taking the selfsame stand. The 8th defendant pleaded that he is a bona fide purchaser for valid consideration of an extent of Ac. 0. 42 cents in R. S. No. 382/1 at West Vipparru Village as per sale deed dated 29-8-1980 executed by nandyala Ramaraju and he had been in exclusive possession of the same. ( 13 ) ON the strength of the pleadings of these parties, the following Issues were settled: (1) Whether the suit is bad for non-joinder of proper and necessary parties to the suit? (2) Whether the plaintiff is estopped from claiming the relief of partition having already filed in O. S. No. 203/79 and withdrawn the same? (3) Whether the award dated 7-2-1980 and the decree passed in pursuance thereof in O. P. No. 74/79 is true, valid and binding on the plaintiff? (4) Whether the partition deed dated 20-7-1979 is true, valid and binding on the defendant? (5) Whether the 3rd defendant is bona fide purchaser for a valuable consideration in respect of item no. 3 of plaint schedule property covered by the sale deeds dated 12-5-1980, 17-3-1981? (6) Whether the plaintiff is entitled for partition and separate possession as claimed to? (7) To what past and future profit if any the plaintiff is entitled to? (8) To what relief?the trial Court recorded a finding that ex. A-1 partition deed dated 20-7-1979 is true but however it does not convey any valid title to the plaintiff and is not binding on the defendants. The trial Court also doubted the arbitration and recorded a finding that the conduct of arbitrators in the case throw any amount of suspicion regarding the reality of the dispute and passing of the award. The trial Court also had recorded a finding that the necessary parties were not impleaded. The trial Court also doubted the arbitration and recorded a finding that the conduct of arbitrators in the case throw any amount of suspicion regarding the reality of the dispute and passing of the award. The trial Court also had recorded a finding that the necessary parties were not impleaded. Further a finding was recorded that though the plaintiff filed earlier suit O. S. No. 203/79 for partition as against his mother and sister which was dismissed as withdrawn, the present suit is not barred since the plaintiff is not estopped in filing the present suit. Certain otherfindings also had been recorded relating to the sales. ( 14 ) ON the strength of the material available on record, the following Points emerge for consideration in the present appeal : (1) Whether the plaintiff can maintain the present suit for partition despite the fact that earlier he filed O. S. No. 203/79 for the self-same relief and got the same dismissed as withdrawn? (2) Whether the suit for partition is bad for non-joinderof necessary parties? (3) Whether the partition deed dated 20-7-1979 Ex. A-1 is true, valid and binding on the defendants? (4) Whether the award dated 7-2-1980 and the decree passed in pursuance thereof in O. P. No. 74/79 are true, valid and binding on the plaintiff? (5) If so to what relief the parties are entitled to? ( 15 ) POINT No. 1: ex. B-26 is a certified copy of the Judgment in O. S. No. 203/79 on the file of Subordinate judge, Eluru. Ex. B-25 is a certified copy of the plaint in O. S. No. 203/79. It is not in controversy that a memo was filed in O. S. No. 203/79 for withdrawing the suit by the plaintiff and the same was dismissed as withdrawn. It is also not in controversy that no leave was prayed for to institute a fresh suit and no liberty was either reserved or had been prayed for or granted in the prior suit. It is also not in controversy that no leave was prayed for to institute a fresh suit and no liberty was either reserved or had been prayed for or granted in the prior suit. Order 23 Rule 1 of the Code dealing with withdrawal of suit or abandonment of part of claim reads as hereunder: (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 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 claim under sub-rule (1), or (b) without 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 authorize 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 plaintiff. (5) Nothing in this rule shall be deemed to authorize 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 plaintiff. In Sarveswara Rao v. Veerraju while dealing with the words "other sufficient grounds" in order 23 Rule 1 (2) (a) and (b) it was held:"the ejusdem generis rule does not apply to the construction of the words "other sufficient grounds". The formal defect mentioned in clause (a) is illustrative of the grounds referred to in clause (b), and although the grounds need not be ejusdem generis with the grounds mentioned in clause (1), they must be "at least analogous" with it. Further, for the application of the rule, there must be a distinct genus or category. Whether the grounds are to be of the same genus as a formal defect or whether the grounds are to be such as are at least analogous to a formal defect, there will be little difficulty in actual practice in distinguishing between the cases to which the rule could be applied and those which are beyond its remedial operation. "in Sambanda Naicker and others v. Ranganayaki Ammal and another a learned judge of Madras High Court on this aspect held:"sub-clauses (a) and (b) of Rule 1 (2) of order 23 deal with two different situations, and not with similar or analogous situations. It will not be doing any violence to the language or to the spirit and object underlying the clause "other sufficient grounds" if it is held that a wider discretion is sought to be given to the Courts under sub-clause (b) than under sub-clause (a ). There is no justification to restrict the scope of sub- clause (b) when the Court is satisfied on other and sufficient grounds to give leave to withdraw then those contained in sub-clause (a)". The language employed in Order 23 Rule 1 does not indicate any classification of suits or categorization of suits and hence the partition action cannot be said to be an exception. The language employed in Order 23 Rule 1 does not indicate any classification of suits or categorization of suits and hence the partition action cannot be said to be an exception. It is no doubt true that a partition action has some peculiarities when compared to other suits since several of the defendants also may be in the position of the plaintiff inasmuch as those parties also would be entitled to the respective shares. However, in the absence of any indication of any categorization or classification of suits to which Order 23 rule 1 to be applicable and the manner and mode of applicability, such interpretation cannot be adopted by the Courts. In santamma v. Venkatarama3 it was held that with respect to the application of Order 23 rule 1 of the Code a suit for partition should be treated differently and a subsequent suit for partition of the same property involved in the previous suit is not barred under Order 23 rule 1 by the dismissal of the previous suit, even though no permission to institute a fresh suit was obtained when the previous suit was dismissed on the ground of compromise, the reason being that the right to bring a suit for partition unlike other suits is a continuing right, and as soon as the defendant failed to carry out the compromise, the parties are relegated to their rights as they existed prior to the compromise. On the strength of the ratio laid down in the aforesaid decision, the trial Court recorded a finding that a second suit for partition can be maintained even if specific leave was not prayed for in this regard. ( 16 ) IT is pertinent to note that as per the material available on record, the withdrawal of the prior suit appears to be on 11 -7-1980. It cannot be in controversy that certain alienations are made subsequent thereto. On a careful scrutiny of the cause of action it is clear that the cause of action for the present suit arose subsequent thereto and hence in view of the same inasmuch as the present suit is based on a different cause of action in the light of certain alienations it cannot be said that the withdrawal of the prior suit unconditionally as against his mother and the sister by the plaintiff would come in the way of maintainability of the present suit. It may be that the plaintiff could have been more careful and cautious in praying for such liberty, but obviously in the peculiar facts and circumstances the plaintiff might have thought that it was not necessary and subsequent thereto in the light of the events the present suit was thought of by the plaintiff. ( 17 ) IN the light of the present language of order 23 Rule 1 of the Code, though the view expressed Madras High Court in the decision referred (3) supra cannot be said to be a binding precedent in the light of the amendments introduced to the said provision subsequent thereto, in view of the facts referred to supra it cannot be said that the suit is not maintainable on that ground since the same is based on a different cause of action and also in the light of the subsequent events and hence the finding of the trial Court thatthe suit is maintainable is hereby affirmed. ( 18 ) POINT No. 2: It is not in controversy that except the properties covered by ex. B-9, the registered settlement deed executed by Peda Venkamma in favour of her daughter, in relation to all other properties of Peda Venkamma since she died intestate, the plaintiff, his brother and sisters would be the legal heirs who would succeed to the said properties. It is also not in controversy that these parties or the heirs of these parties are not impleaded as parties to this suit. The alienees who purchased certain properties from certain of the parties in pursuance of the arbitration proceedings and also the party who purchased the property from the sister of the plaintiff alone were shown as defendants without impleading the heirs. It is needless to say that a suit for partition without impleading the other sharers cannot be maintained. Order 1 Rule 9 of the Code reads as hereunder:"no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: provided that nothing in this rule shall apply to non-joinder of a necessary party. "in Kanakarathanammal v. V. S. Loganatha mudaliar and another it was held that it is true that under Order 1 Rule 9 of the Code no suit shall be defeated by reason of misjoinder or non-joiner of parties but thee can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it the infirmity in the suit is bound to be fatal and once it is held that two brothers are co- heirs in respect of properties left intestate by their mother, the suit partakes of the character of a suit partition and in such a suit clearly the plaintiffs alone would not be entitled to claim any relief against the defendants. In Ali Amad v. Sindhi Ebrahim Kasam it was held that in a partition suit all persons entitled to share in property by inheritance are necessary parties and non-impleading any necessary party renders suit liable to be dismissed and the same principle is applicable to Muslims also. In Panchapakesan v. Per/a Thambi Naicker (died) and others at paras 6 and 7 it was held: "no doubt, Order 1, Rule 9, Civil procedure Code, provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The question arose before a Bench of the Calcutta high Court in Haran Sheik v. Ramesh chandra (AIR 1931 Cal. 622) as to whether notwithstanding this provision, the Court had power to dismiss the suit in which no effective decree can be made in the absence of an interested party. That was a suit in which the plaintiffs sued in a representative capacity for a declaration of a right of way as a village road over the land mentioned in the plaint and for removal of an obstruction thereon. In the trial court, an objection was taken that one of the persons interested in the land over which the relief was asked for was not made a party to the suit. The trial court did not give weight to this objection and granted the relief. In the trial court, an objection was taken that one of the persons interested in the land over which the relief was asked for was not made a party to the suit. The trial court did not give weight to this objection and granted the relief. In appeal, a bench of the Calcutta High Court, observed, after referring to Order 1 rule 9, Civil Procedure Code, as follows:-"but notwithstanding this provision, it is plain that the Court will not entertain a suit in which no effective decree can be made in the absence of an interested party. For instance, in a suit for particular of joint property, if it is established that one of the owners has not been joined as a party, the Court will not proceed to make a decree; the decree will not be operative, as it must deal with the share of the absent person interested, who cannot be bound thereby. Similarly, in a case like the present, where the decree is to be made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon, if it is discovered that a person interested in the servient tenement has not been made a party to the suit, the court will not proceed to make a decree. The decree, if made, must be infructuous; if a suit is instituted by the absent person for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer. ""in Subbaraya Sastri v. Seetha ramaswami [ (1933) 65 MLJ 290 ] a learned single Judge of this Court had to deal with a case of the non-joinder of a Municipality in a suit in which the municipality was interested. On an elaborate review of the case law and after referring to certain passages in bullen and Leake s precedents and pleadings , the learned Judge found that notwithstanding Order 1 Rule 9, civil Procedure Code the Court will be justified in dismissing a suit if the necessary party is not impleaded. The same principle applies to this case also having regard to the reliefs prayed for by the plaintiffs. The question as to whether there was a partition as contended by the plaintiffs is one in which all the shares are interested. The same principle applies to this case also having regard to the reliefs prayed for by the plaintiffs. The question as to whether there was a partition as contended by the plaintiffs is one in which all the shares are interested. Even with regard to the plea of injunction which the plaintiffs have asked for, all the persons interested should be made parties. Even with regard to the limited rights of joint possession, all the persons interested should be made parties, for it may be open to those who are not made parties to show that the plaintiffs have no subsisting title. Under these circumstances, we are clearly of the opinion that the lower Court erred in granting a decree which in fact has not been asked for by the plaintiffs themselves in view of their allegations. In this view, we do not express any opinion on the various questions that arise for consideration in this appeal, in the absence of the order said to have been passed by the Collector after the land was resumed. "in Shivkali Bai v. Meera Devi it was held that in a suit for general partition and allotment of property purchased by plaintiff to the share of vendors of plaintiff and to claim possession of the property and the plaintiff not impleading the daughter though a Class I heir as a necessary party the suit is bad for non- joinder of necessary party and is liable to be dismissed. In Matoi Mia v. Abdul Haque it was held at paras 7 and 8 as hereunder:"taking into consideration the provisions of Order 1 Rule 10 (2) and Order 6 rule 17 and exposition of the legal position in relation thereto enunciated in the different decisions discussed above I am of the firm opinion that no change in law as respects addition of necessary parties has been made by the amendment effected in the C. P. C. in 1976 by adding the two provisos to section 99 and Order 1, Rule 9. As observed earlier all these provisions have to be read together and notice has therefore to be taken of the position that no amendment in any manner was considered necessary by the legislature in the case of either of the provisions (Order 1 Rule 10 (2) and Order 6, rule 17) as consequential to the addition of the two provisos. As observed earlier all these provisions have to be read together and notice has therefore to be taken of the position that no amendment in any manner was considered necessary by the legislature in the case of either of the provisions (Order 1 Rule 10 (2) and Order 6, rule 17) as consequential to the addition of the two provisos. Thus, in my opinion, the purport of the provisos is not to non- suit a plaintiff if relief may be made available to him by the Court in exercise of its powers under Order 1, Rule 10 (2) and Order 6, Rule 17 as consequential to the addition of the two provisos. Thus, in my opinion, the purport of the provisos is not to non-suit a plaintiff if relief may be made available to him by the Court in exercise of its power under Order 1, rule 10 (2) and Order 6, Rule 17. It is indubitable that the general purport of the provisos is merely to circumscribe or curtail the scope of operation of the main provision. It cannot, and does not, therefore, normally expand the scope of the main provision or otherwise contain in itself any substantive right or rule or procedure. There cannot be any doubt about the position that both section 99 and Order 1 Rule 9 are remedial provisions. The object of both these provisions is to ensure that prolixity in litigation is avoided on the one hand and on the other hand technicalities which inevitably bear its stamp on the procedural law must not be allowed to defeat the ends of justice. This object, in my opinion, has not in any way been affected by the two provisos. Because, in that case the object thereof would be clearly repugnant to the substantive provisions contained in the main part but a proviso is not allowed by the canons of interpretation to achieve such a result. In my opinion the core object of the two provisos is that no decision should be rendered in any suit in the absence of the necessary parties and if that was done such a decision could not be saved by virtue of the remedial measures enacted in the main part or rather the unamended provisions section 99 O. 1, R. 9, CPC and therefore the two provisions were merely inserted by way of abundant caution. Indeed, these two provisions were made more meaningful and effective by addition of the provisos to pre-empt prolixity and circuity in litigation. These are, therefore, not to be so construed as to mean that merely because a necessary party was not before the Court the suit must be dismissed. Indeed, in such cases, the power of the Court which it can exercise under Order 1, Rule 10 (2) and Order 6 rule 17 which remain unamended can be invoked and this power is not impaired or intended in any manner by the two new provisos, the real purport of which, as I have indicated, is not penal but remedial. In view of the legal position discussed above I am of the firm opinion that the impugned judgment and decree passed by the Court below remanding the case to the trial Court for impleading the necessary parties and proceedings with the trial thereafter was not only perfectly legal and right, it was also just and expedient being the most appropriate course to be followed in such cases. I have no doubt that in this case, the amendment to be allowed shall not cause any injustice to the parties to be impleaded as no question of limitation is involved in the matter. On the other hand it shall secure complete justice to all concerned by preempting multiplicity of prolixity in litigation. Accordingly I uphold the judgment and decree passed by the learned lower appellate Court and dismiss the appeal. In view of the fact however that in this appeal a point of law of some importance was agitated on which there appears to be no decision of this Court, I leave the parties to bear their own costs of this appeal. " ( 19 ) IT is true that there is some negligence on the part of the plaintiff in not impleading the necessary parties and on that ground the plaintiff is liable to be non-suited and accordingly the suit was dismissed. " ( 19 ) IT is true that there is some negligence on the part of the plaintiff in not impleading the necessary parties and on that ground the plaintiff is liable to be non-suited and accordingly the suit was dismissed. But, however, in the light of the peculiar facts and circumstances and especially in the light of the view expressed by this Court in relation to the bar under Order 23 Rule 1 of the Code and the applicability thereof to a different cause of action and the subsequent events, this Court is of the considered opinion that it would be just and proper to remand the matter and give an opportunity to the plaintiff to implead all the necessary parties forthwith and also adduce further evidence if any in this regard. It is needless to say that the necessary parties so impleaded also would be given an opportunity and the other parties who are already on record also to be given opportunity to adduce further evidence if any in this regard in view of the order of remand being made by this Court. ( 20 ) POINT Nos. 3 and 4: In view of the fact that this Court is inclined to make an order of remand, these Points do not call for any decision by this Court. It is open to the trial court to frame appropriate Issues excluding the issues on the maintainability of the suit covered by Points 1 and 2 supra and decide the case as indicated above. It is made clear that this Court has not expressed any opinion regarding the rights of the parties inter se except to the extent of giving findings on the points 1 and 2 supra. ( 21 ) POINT No. 5: Accordingly, the judgment and decree of the trial Court are hereby set aside except to the extent of upholding the finding so far as the same relates to Issue No. 2. The Appeal is allowed to the extent indicated above. It is brought to the notice of this Court that this is an old suit. The Appeal is allowed to the extent indicated above. It is brought to the notice of this Court that this is an old suit. Hence the trial Court to make an endeavour to dispose of the matter after giving opportunity to the plaintiff to implead all the necessary parties and also by giving opportunity to such parties who would be brought on record and the parties who are already on record in accordance with law and dispose of the same at the earliest point of time. No order as to costs.