Raghava Rao, J.
1. The question raised in this case is as to an encroachment alleged against the plaintiff, the Molla of a certain mosque in Calicut by the defendants, the Calicut Municipal Council and the Collector of Malabar, representing the Provincial Government, Madras. The encroachment alleged against the plaintiff has been concurrently found by the courts below and in spite of a fairly long and strenuous argument on the part of Mr. Ramakrishna Aiyar,. I am not inclined to disturb the finding of the Courts below. Mr. Ramakrishna Aiyar's main point is that Exhibit D-3 a certain letter written by his client to the Municipal Council in September, 1940, has been misread by the lower appellate Court as containing a certain admission by his client that the suit shop buildings were reconstructed some years back. I am not quite so sure however as the lower appellate Court that there is any such admission as is supposed by the lower appellate Court to exist in Exhibit D-3. At the same time I must say there is certainly other evidence on record on which it was competent to the lower appellate Court to arrive at its conclusion concurrently with the trial Court that there was, in fact, an encroachment as alleged by the defendants. There is D.W.1, the Commissioner who prepared the plan Exhibit P-29 and submitted his reports Exhibits P-29 (a) and P-29 (b) and there is also the evidence of D.W. 2 the Town Surveyor, who made a report about the encroachment before suit. On these facts the learned Subordinate Judge has principally relied, besides dealing with the other oral evidence on record. I am not therefore prepared to disturb the finding of the courts below.
2. Then Mr. Ramakrishna Aiyar urges that I might grant him permission to withdraw this second appeal in order that he might file a fresh suit for a declaration that there has been no encroachment; that is because he says, since the institution of this second appeal a certain commissioner who has been appointed by this Court has discovered certain survey stones and reported upon their existence in the suit locality, which would go to show that there has been no encroachment at all on the part of the plaintiff. I am not satisfied that the report that has been submitted to this Court by the Commissioner appointed by it is really matter on which I am entitled to act by way of additional evidence in this second appeal or by way of an inducement to me to allow a withdrawal of this suit by the plaintiff. The provisions of Order 41, Rule 27, Civil Procedure Code, are not in my opinion satisfied in the present case and notwithstanding the order which a learned Judge of this Court made on a petition by the appellant, appointing a Commissioner who has since made a report of his own. I cannot say that conditions have been made out which would justify my reception of the report of that Commissioner as evidence for consideration in second appeal. Nor can I say that the mere fact that the suit is bound to fail on the merits of this second appeal is itself a good ground to enable me to allow the plaintiff to withdraw the present suit. What the learned Counsel for the appellant says is that if the second appeal is allowed to be withdrawn his client will be in a position to apply for review of (he judgment and decree of the lower appellate Court by bringing to its notice the additional material in the shape of the report by the Commissioner appointed by this Court in second appeal as disclosing the existence of survey stones which would disprove the case of encroachment alleged against him by the defendants in the present suit. I am not satisfied that the requirements of Order 23, Rule 1 of the Code which have to be borne in mind in. considering a request of this description do at all stand fulfilled in (he present case; and it seems to me that I cannot, in order to enable the appellant to file a review petition, override the provisions of Order 23, Rule 1 of the Code. The power to allow withdrawal of suits is specifically dealt with by the Code and unless the conditions prescribed by the Code do exist I have no jurisdiction to allow the withdrawal merely because unless that is done no review of the judgment and decree of the lower appellate Court can be sought by the plaintiff and the plaintiff will be put to considerable hardship. Considerations of hardship have no place in my opinion in the application of (he provisions of (he Code where they are perfectly clear and on considerations of hardship it is not open to any Court to exercise inherent powers on matters specifically dealt with by the Code itself.
3. In these circumstances the second appeal fails and is dismissed with costs.