S. Nainar Sundaram, J.
1. The first defendant in O.S. No. 1484 of 1974 on the file of the District Munsif of Tiruchirapalli is the appellant and the second respondent is the second defendant in that suit. It is unnecessary to refer to the facts which have given rise to the litigation in detail. The plaintiff wanted a declaration of her title and recovery of possession from the first defendant on the basis of a deed dated 19th July, 1954, the original of which has been marked as Exhibit B-1. That deed was executed by the plaintiff Thandavaraya Pillai. The very same Thandavaraya Pillai under Exhibit B-9, dated 24th September, 1966, conveyed the property to the first defendant. There was a proceeding for eviction instituted by the first defendant against Thandavaraya Pillai before the Rent Controller, Tiruchirapalli and pursuant to the order obtained therein possession has been obtained by the first defendant. However, the plaintiff took proceedings under Order 21, rules 100 and 101 of the Code of Civil Procedure. The said proceedings terminated on a joint endorsement. I will have occasion to refer to it subsequently while dealing with the second point mooted out for consideration.
2. The first Court dismissed the suit of the plaintiff. However on appeal the plaintiff succeeded. Hence the second appeal by the first defendant. Two questions have beef formulated for consideration at the time o admission of this second appeal and they run as follows;
1. On a true construction of Exhibit B-1, whether the plaintiff gets any title to the property; and
2. Whether the suit is barred by limitation.
3. I have been taken through the recitals in Exhibit B-1. The very preface to the deed characterises it as settlement. There is no ambiguity that the ultimate beneficiary is the plaintiff. From a reading of the deed, it is not possible to spell out that the settlor Thandavaraya Pillai reserved any right for himself. Under the deed the settlor has completely divested himself of all his interest to and in favour of the beneficiary only. If this is so, the said Thandavaraya Pillai was not competent to execute Exhibit B-6 in favour of the first defendant. What was contended by the first defendant in the Courts below was that the recitals in the deed indicate that there was no intention on the part of the settlor to transfer any right in praesenti, but the intention was to transfer the rights only alter the lifetime of Thandavaraya Pillai. No such construction is possible in view of the express recitals in the deed. Rightly the lower appellate Court held that the plaintiff has got title to the suit property on the basis of Exhibit E-1.
4. Coming to the second question as to whether the suit filed by the plaintiff is barred by limitation it will depend upon the construction of the order that came to be passed in the proceeding under Order 21, rules 100 and 101 of the Code of Civil Procedure. The certified copy of the concerned petition and the orders passed thereon have been marked as Exhibit A-2 in the case. There was a joint endorsement made by the parties on 4th March, 1968, which reads as follows:
Since both parties to the dispute feel that there is a bona fide dispute about title they agree to have the matter agitated and adjudicated in a regular suit to be filed by the petitioner. Hence this application is not pressed and may be dismissed without costs.
On the basis of the said joint endorsement, the following order was passed on the same day i.e., 4th March, 1968:
A joint endorsement is made and recorded. Petition is dismissed. No costs.
5. Mr. K. Chandramouli learned counsel for the appellant, would state that the said order passed would come within the mischief of the expressions 'against whom an order is made' occurring in Rule 103 of Order 21 of the Code of Civil Procedure, and the suit not having been filed within one year from the date of the said order is barred by limitation. The question is as to whether the order passed as per Exhibit A-2 on the joint endorsement would amount to an order against the plaintiff. The learned counsel would refer to the dictum of the Full Bench of this Court in Cannanore Bank Ltd. v. Madhavi : AIR1942Mad41 , where the Full Bench dealt with a case arising under Order 21, Rule 63 of the Code of Civil Procedure, in which the claim petition objecting to an attachment was simply 'not pressed and dismissed' and a subsequent suit for declaration was filed. The Full Bench points out that where the claimant says to the Court that he does not press the petition and consents to an order of dismissal, it is an adverse order. At the same time, the Full Bench points out that if the person objecting to the attachment does not ask for h s claim to be investigated and the order on the petition is merely that it be recorded, it cannot be said that this is an order 'against' him. Again the Full Bench points out that if the petitioner had in fact asked to be allowed to withdraw the petition and the Court had acquiesced in the course, it might very well be that the order would not be adverse order within the meaning of the rule. Towards the end of the judgment, the Full Bench further observes as follows:
If the petition is a petition which falls within rule 58 and the petitioner has not sought permission to withdraw it without prejudice to his rights it is obviously an order which is against him.
If there has been a reservation with regard to the right claimed and agitated and such rights or claims are not given up by the party or rejected by the Court then the order that terminates such proceedings though worded as one of dismissal, would not amount to an order against the party. The observations of the Full Bench support this view of mine. The procedure under Rule 100 of Order 21 of the Code of Civil Procedure, is only optional and the applicant can always withdraw his application, making appropriate reservation to resort to the remedy under the general law of filing a title suit. This is what has happened in the present suit. There was no investigation into or satisfaction reached by the Court that the claim was futile and was liable to be rejected. In the present Case the order of dismissal is the result of a joint endorsement. Both the parties consciously agreed to have the matter agitated and adjudicated in a regular suit. There was no abandonment of rights or claims and the joint endorsement clearly reveals the intention of the party to pursue further the rights claimed. In the said circumstances, it is not possible to apply the final ratio of the Full Bench referred to above to the facts of the present case and hold that the order passed on 4th March, 1968, is an order against the plaintiff and hence she must file the suit under Order 21, Rule 103 of the Code of Civil Procedure, within one year from the date of the order. Rightly this point has been found against the first defendant by the lower appellate Court.
6. For all the above reasons the second appeal fails and the same is dismissed. But there will be no order as to costs.