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6. The appellant (fifth defendant) has, in this appeal reiterated her contention that in a suit for partition, each defendant who also seeks partition and separate possession, is in the position of a plaintiff and without the consent of all the plaintiffs, a suit cannot be dismissed and when she objected to the withdrawal of the suit, the Court could not have dismissed the suit as settled out of Court. It is also contended that at all events, even if the plaintiff was not interested in pursuing the suit, the Court ought to have transposed her as the plaintiff and transposed plaintiff as a defendant in the suit and proceeded with the matter.

(iii) If any defendant has already sought partition and separate possession by paying Court fee and opposes the dismissal/withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.
(iv) Even if no defendant has sought the relief of partition and separate possession, still then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.

17. In this case, the suit for partition was filed in the year 1990. The fifth defendant had filed her written statement seeking separation of her share in October 1993 and paid Court fee. Even the first defendant sought separate possession of her share in November 1997. The suit was sought to be withdrawn by the plaintiff after evidence, when the matter was listed for final arguments. While it is true that the withdrawal of the suit by the plaintiff would not bar the fifth defendant from filing a fresh suit for partition, there is no reason why fifth defendant should not be permitted to continue the suit by transposing herself as a plaintiff. But for the fact that the plaintiff had filed the present suit in the year 1990 and the fifth defendant was under the impression that she can get her share also in the said suit (having sought such share in 1993), she might have filed a separate suit long back. Therefore, the fifth defendant was justified in opposing the dismissal of the suit. In view of the objections of the fifth defendant to the memo for withdrawal on the specific ground that each defendant in a partition suit seeking his or her share is in the position of co-plaintiff, the Court ought to have permitted the fifth defendant to continue the suit by transposing her as the plaintiff. Even though the fifth defendant did not make any specific application for transposition, it was clear from her objections that she wanted the suit to be continued and specifically pleaded that she was in the position of the plaintiff In the circumstances, the appropriate course was to direct her to be transposed as plaintiff and then proceed with the matter.

18. In view of the above, we allow the appeal as follows:

(i) The order dated 3-2-1998 passed in O.S. No. 5 of 1991 on the file of the Civil Judge, Bangalore Rural District (dismissing the suit by accepting the memo of the plaintiff for dismissal) is set aside.
(ii) The fifth defendant in the suit is permitted to get herself transposed as plaintiff 2 and the plaintiff is transposed as defendant 10.
(iii) The suit by original plaintiff (who is renumbered as plaintiff 1 on transposition of 5th respondent) shall stand dismissed as settled out of Court.