JUDGMENT 1. Learned counsel for appellants has filed application under Order XXIII Rule 1(3) of Code of Civil Procedure seeking leave of this Court to withdraw appeal with liberty to file fresh suit before Competent Court. 2. In the affidavit filed in support of application, it is stated that instant suit in O.S.no.85/2007 was filed seeking bare injunction for following reliefs: a. That a decree of permanent injunction be pleased to pass against defendant or persons claiming through him not to cut kalli fence existence towards northern side of suit property i.e. plaintiffs A-B property as shown in hand sketch map. b. Such other incidental reliefs be awarded to plaintiffs. In respect of following Suit Property: That house, backyard and front open site bearing its T.M.C.no.39 situated at Ankadakan-Bankapur, T.M.C. which is bounded by: To the east : Property of Chandrasingh Kalaghatagi and Ramasingh Topannavar bros. To the west : Property of Durgappa Pujar and Government road To the north : Open site ( property) of defendants (originally owned by Mahadevappa Veshadhari) and House and backyard of Hanumantappa Kammar and Pala- Badam raod To the south : Properties of 1) Chandrasingh Aladakatti 2) Durgappa Kalagghatagi 3) Shankarsingh Bhavani 3. Trial court dismissed suit on the ground that despite Commissioner's report, there was no proper identification of encroached portion. On same ground even appellate court confirmed finding of trial court. 4. Learned counsel submitted that as there was technical defect in not mentioning proper details of encroachment, appellant seeks leave of this Court to file fresh suit mentioning the same. 5. Learned counsel for respondent would submit that suit being an injunction suit, appellants would always be at liberty to file fresh suit, as cause of action would be recurring. 6. From the above submissions and as respondent is not having serious objection to the application and taking into account that the suit suffers from technical defect, this Court does not find any impediment in allowing the application. I.A.no.1/2022 is allowed accordingly. 7. Appellants are permitted to withdraw this appeal with liberty to file fresh suit in accordance with law.