1. This is a second appeal from the decision of the learned District Judge of Kumaun. The suit was for declaration that the plaintiff, who is a Hindu widow, was entitled to 51 nalis of land out of 153 nalis.
2. The widow-plaintiff is the widow of one of the three brothers. In 1925 one of the surviving brothers applied for partition in the Revenue Court. The plaintiff-widow objected and filed a regular suit for a declaration of her rights, Prem Ballabh, one of the brothers, contested the suit which ended in a compromise. That compromise recorded inter alia that if Prem Ballabh or Daya Ram, defendants, filed a partition suit against Shri Krishna the plaintiff-widow should have a right to file a regular suit. It further provided that the two brothers were to give 25 nalis each of land to the widow for her maintenance. The compromise ended:
The plaintiff's claim may therefore be allowed to be withdrawn with permission to file it again.
3. Another suit was brought by Prem Ballabh the : next year, against the widow and his other brother. The suit was in connection with the 25 nalis of land which Prem Ballabh should have given to the plaintiff-widow. That suit too ended in a compromise under which the widow agreed to take Rs. 5 per month instead of the land. Prem Ballabh however brought another suit for partition whereupon the widow filed the present suit for declaration of her rights in accordance with the terms of the original compromise. The contesting defendant in the lower appellate Court contended that as there was no order produced granting permission to the plaintiff to withdraw her suit in accordance with the original compromise Order 23, Rule 1. Sub-section (3) applied and she could not therefore file the present suit. The lower Court decided, however that it was unnecessary to show any order in express terms to withdraw the suit. The compromise was filed in Court and as a result of the filing of the compromise in Court both the parties withdrew their action. The lower Court therefore held that the permission of the Court to withdraw the suit must be implied. The contesting defendant has appealed from this decision.
4. I agree with the decision of the lower Court. It is agreed the compromise was filed in the Court and there is an order on the record of the Court saying that this compromise and the application to withdraw would be considered on a certain date. It must be presumed that the application was dealt with and as each party withdrew their suits it must be presumed that the permission asked for was granted. I am confirmed in this view by a Patna decision reported in A.I.R. 1926 Pat. 259 and I therefore dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.