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2. The present appellant is the plaintiff in Title Suit No. 4/2000 in the court of learned Munsiff, Tezpur. The plaintiff/appellant filed the suit against the defendants/respondents for declaration of right, title and interest over the suit land described in Schedule-B, declaration that the mutation entry in the records of rights vide order dated 26.05.1997 of the Circle Officer, Naduar Revenue Circle passed in MC Case No. 22/1996-97 is null and void and for permanent injunction. It is pertinent to mention here that the original defendant No.1, Bahagi Kalita died during the pendency of the present appeal where after her legal heirs were substituted vide order dated 19.09.2013 passed in MC No.1779/2013 impleading the legal heirs as the respondent Nos. 1(a) to 1(d). The case of the plaintiff/appellant is that he is the owner of the Schedule-B land mentioned in the plaint by right of inheritance and mutual partition with the rest of his family members i.e. proforma defendant Nos. 3 and 4. The defendant/ respondent No.1, Bahagi Kalita had been running a tea stall by erecting a temporary shed on the road side land near the suit land. On her eviction from the road side shed by the Government sometime in the month of August, 1992, the said defendant/respondent No.1 requested the plaintiff/appellant to give her a room on rent by erecting on the Schedule-B land of the plaint. The plaintiff/appellant constructed an ekchali room measuring 32' x 16' made of thatched roof with bamboo chatai walls over a portion of suit land which is described in Schedule-C of the plaint and as per request of the defendant/ respondent No.1. There after the plaintiff/appellant let out the said ekchali house and premises to the defendant/respondent No.1. The tenancy started in the first week of October, 1992 at a monthly rent of Rs.40/- payable within the first week of each and every succeeding English calendar month and since then the defendant/respondent No.1 has been in occupation of Schedule-C house and carrying her business of the tea stall therein. The RSA 111 of 2007 defendant/respondent No.1 paid rent to the plaintiff/appellant in respect of the suit house up to the month of May, 1996 and thereafter the said defendant/respondent No.1 deliberately failed and neglected to pay the house rent to the plaintiff/appellant in spite of repeated request and demand. The defendant/respondent No.1 filed an application before the Circle Officer, Naduar Circle in the month of September, 1996 for mutation of her name over the suit land which was registered as MC Case No.22/1996-97. A notice was served upon the plaintiff/appellant, who contested the case and the Circle Officer, Naduar circle granted mutation of the name of the defendant/respondent No.1 illegally in respect of the suit land on the strength of possession on 26.05.1997. The said mutation order has been put under challenge in Revenue Appeal No. 6/1997-98 on 23.07.1999 before the Deputy Commissioner, Sonitpur, Tezpur. The plaintiff/appellant filed Title Suit No.38/1998 in the court of Civil Judge, Junior Division at Tezpur for recovery of possession of the suit house and arrear rent against the defendant/respondent No.1. In the said suit, the defendant/respondent No.1 filed her written statement and denied the relationship of landlord and tenant with the plaintiff/appellant and claimed her right, title and possession over the suit land by adverse possession on the strength of illegal mutation. After submission of the written statement of the defendant/respondent No.1 in Title Suit No.38/1998, the plaintiff/appellant withdrew the said suit with permission of the court to institute a fresh suit and fresh cause of action on 27.09.1999. The plaintiff/appellant submitted that the illegal mutation order dated 26.05.1997 in respect of the suit land in favour of the defendant/respondent No.1 is illegal and the claim of the defendant/respondent No.1 in the said Title Suit No.38/1998 had clouded the right, title and interest of the plaintiff/appellant over the suit land. During the pendency of the suit, the defendant/respondent No.1 inducted the defendant/respondent No.2 in the suit house. Therefore, the plaintiff/appellant filed the suit with the reliefs mentioned hereinabove.

10. However, at the time of hearing, the learned counsels appearing on behalf of the parties to the appeal expressed that another substantial question of law is to be framed with RSA 111 of 2007 regard to the findings of issue No.1 and the additional issue No.2. Accordingly, the substantial question of law is framed as follows :

"Whether the learned courts below were justified in holding that the plaintiff/appellant since failed to seek relief of right, title, interest and possession over the suit land and cancellation of mutation order in earlier suit (TS No.38/98) under Order 2 Rule 2 (iii) of the Code of Civil Procedure, 1908, he cannot after wards sue for any relief so entitled on the same cause of action including declaration of right, title and interest and cancellation of mutation order passed in MC No.22 of 1996-97 in the present subsequent suit?"

11. Let us examine the substantial question of law No.1. Mr. Dhar submits that the pleading of the defendant/respondent No.1 is totally silent with respect to the starting point of the adverse possession so claimed by the defendant/respondent No.1. The initial entry of the plaintiff/respondent No.1 was permissible one in the form of a tenant under the plaintiff/appellant. It is submitted that in case where the defendant pleads adverse possession against the rightful owner, the burden of the plaintiff is limited to the extent to show that he is the rightful owner and requires no proof to show that he has been maintaining the possession all throughout since the date of entry of the defendant to the suit property. The defendant/respondent No.1 failed to show her intent to dispossess the plaintiff/appellant from the suit land all throughout the possession since the year 1979 as pleaded in the written statement. She even failed to prove her entry in the month of October, 1979. There is no specific pleadings as aforesaid with respect to the date on which the possession of the defendant/respondent No.1 turned to be adverse. The defendant/respondent No.1 mutated her name and the date of mutation order could be taken to be the starting point from which the possession of the defendant/respondent No.1 started to be adverse against the plaintiff/appellant. If the same is considered to be the date of mutation order passed i.e. 26.05.1997 then also the suit is not barred by limitation inasmuch as the initial suit was filed in the year 1998 and after withdrawing the same it was filed in the year 2000. There is no piece of evidence of assertion of hostile possession to the knowledge of the plaintiff/appellant as such the court below wrongly decided the issue No.4. RSA 111 of 2007

31. The term "subject matter" as stipulated in Order 23 Rule 1 of the CPC means the plaintiff's cause of action. Keeping in view the accepted definition of cause of action, the act of defendant/respondent No.1 obtaining the mutation is pleaded in the plaint by the plaintiff/appellant in Title Suit No.38/98, the said mutation proceeding admittedly was contested by the plaintiff/appellant as pleaded in the plaint wherein the defendant/respondent No.1 claimed her title against the plaintiff/appellant. That itself is the cause of action for seeking the relief of declaration of right, title and interest of the plaintiff/appellant in Title Suit No. 38/98 and cancellation of the mutation order, more so, when the mutation of the name of the defendant/respondent No.1 was granted by the Circle Officer. If for any reason, the plaintiff/appellant omitted to seek for the said relief, leave ought to have taken within the periphery of Order 2 Rule (2) of the CPC. Later on, the plaintiff/appellant sought for withdrawal of the Title Suit No.38/98 on the ground of the RSA 111 of 2007 denial of title by the defendant/respondent No.1 and sought for leave to file the suit afresh. The said leave was not granted and as held in AIR 2000 SC 2132 (supra) the said leave is required for overcoming the bar under Order 2 Rule (2) and (3) of the CPC which is against the submission of Mr. Dhar. The submission of Mr. Dhar relying 2002 (3) GLT 413 (supra) that it is not permissible for the court to grant the prayer for withdrawal of a suit and refuse the leave. But if the Court allows to withdraw the suit on the prayer of the plaintiff without granting any liberty to file the suit afresh the same would not debar the plaintiff to file the suit again provided the Court does not refuse specifically such prayer for granting liberty at the time of allowing to withdraw the suit. In such a situation, as per Mr. Dhar the said liberty/order of withdrawal must be examined along with the petition for withdrawal. Keeping the view of this court, the application for withdrawal under Order 23 Rule 1 of the CPC filed by the plaintiff/appellant is examined wherein it has been specifically stated that as the defendant No.1 had disputed his title over the suit land so it has become necessary to file the suit afresh withdrawing the Title Suit No.38/98 along with the leave. If it is construed from the said petition, it is very much clear that the said cause for withdrawal is very much pleaded in the plaint of Title Suit No.38/98 as the fact of mutation and participation of the plaintiff/appellant in the said mutation proceeding is very much apparent including the grant of mutation in favour of the defendant/respondent No.1. So knowing fully well about the cause for withdrawal the learned court rejected the prayer for leave terming the same is not a formal defect in order to grant the leave for filing the same afresh.