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Judgment
N. Ananda
The learned trial judge has refused to grant an order of temporary injunction interalia holding that plaintiff had filed O.S. No. 7294/2006 against defendants for partition and separate possession of suit schedule properties and the suit was withdrawn in the wake of memorandum of understanding entered into between plaintiff and defendants No. 1 and 2 in O.S. No. 7294/2006. The plaintiff by suppressing the above fact has filed the instant suit for partition and separate possession, on the same cause of action. In the circumstances, the learned trial judge has declined to grant an order of temporary injunction. The learned counsel for appellant/plaintiff would submit that earlier, the suit was withdrawn at the advice of elders. Therefore, there is no bar to file a subsequent suit. In support of this contention, he has relied on the judgments of Supreme Court reported in Kandapazha Nadar and Others Vs. Chitraganiammal and Others, and Kale and Others Vs. Deputy Director of Consolidation and Others,
In a decision reported in Kandapazha Nadar and Others Vs. Chitraganiammal and Others, the Supreme Court has held that, withdrawal of suit without liberty to file fresh suit, without any adjudication does not constitute decree and it does not debar defendants from taking defence in second round of litigation.
In my considered opinion, the above decision is totally inapplicable to the facts of instant case.
In a decision reported in Kale and Others Vs. Deputy Director of Consolidation and Others, the Supreme Court has held that, in case of family settlement set up by the parties, the family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
In the instant case, it is not the case of plaintiff that memorandum of understanding, in the wake of which earlier partition suit was withdrawn was inequitable. Even if it is assumed the memorandum of understanding is not equitable, the plaintiff has to file a suit to reopen the partition and not to file a fresh suit for partition. The learned trial judge considering these aspects has held that plaintiff has not made out a prima-facie case. Therefore, I do not find any reasons to interfere with the impugned order. The appeal is dismissed without reference to other side.