1. ' MRS. YASMIN ABBASEY, J.---Being aggrieved with the judgment dated 24-8-1994 passed by Vth Additional District Judge, Hyderabad in Civil Appeal No,206/1989, the Revision has been preferred by the applicant.
2. ' Facts leading to this Revision are that property bearing C.S.No,47/1 measuring 326 square yards situated at Hirabad, Hyderabad was purchased by the parties, in civil revision and their brother Allandiya from Settlement Department, Hyderabad vide PTD dated 30-6-1997.
3. ' Allandiya expired on 12-11-1979 and name of his legal heirs were brought on the record of rights in place of Allandiya along with the parties. Property was mutated in favour of all the share-holders and later on was also equally divided between all shareholders as per partition deed executed on 24-8-1980 and got registered on 26-8-1980. It appears that in contrary to the mutual settlement and partition deed, defendant had raised a partition wall on northern side of road in between the house of applicant and himself resulting diminishing value of applicants property. On 20th March, 1980 applicants approached the respondent late Abdul Hafeez and had requested him to divide the property in equal shares with no effect to the monetary values of each shareholder so that they could avail facilities equally, but respondent refused. Consequently suit was filed by applicant for partition. It was decreed vide order. Dated 11th October, 1989. In appeal findings were reversed with the observations that Suit No,258 of 1993 was barred under Order IX, Rule 9, C.P.C. As the previous suit bearing No,125/1982 filed by the applicant with same relief was dismissed in default. It has further been observed that after entering into an agreement' on 5-8-1980, the share-holders of property are bound by the agreement which is prior in time to the registered partition deed executed on 24-8-1980 and that legal heirs of one of the co-sharers i.e: Allahdiya were not party to the partition deed executed on 24-8-1980 therefore, no decree in absence of one of the co-sharers on the basis of this deed can be passed.
4. ' For proper adjudication of case it would be beneficial to reproduce Order IX, Rule 9 and Order IX, Rule 8, which reads as under: ' Orders IX, Rule 9, C.P.C.
5. ' "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit."
6. ' Order IX Rule 8 C.P.C.
7. ' "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
8. ' Bare regarding of Order IX Rule 9, C.P.C. Shows that filing of fresh suit is barred when the point in issue has been wholly or partly disposed of -under Order IX, Rule 8, C.P.C. On admission of defendant in absence of plaintiff, A reading of both the Orders together makes it clear that bar of fresh suit is only when the matter is wholly or partly disposed of under Order IX Rule 8 or under Order IX, Rule 9, whereas in the present case as per contents of the certified copy of the case diary of Suit No,125/1992 it was dismissed in absence of both the parties to the suit without adjudication of the case on merits or on admission of defendant thus Order IX Rule 4 will come into play.
9. ' Order IX, Rule 4 specificies that if the suit is dismissed under Order IX, Rule 2 or 3, plaintiff may (subject to the law of limitation) can file a fresh suit or he may apply for an order to set the dismissal aside. Thus under Order IX, Rule 4, two options are given to an aggrieved person. One by filing a fresh suit and the other with a prayer for setting aside the dismissal.
10. ' Indeed to choose the options as provided under Order IX, Rule 4 is left at the discretion of the party to make a judgment whether or not a lengthy trial of fresh suit be followed or he should approach the Court for setting the dismissal aside.
11. ' Commenting on the alleged act of respondent it is inter alia, contended by learned counsel for applicant that property was not partitioned in accordance with partition deed executed on 24-8- 1980. By raising a wall in between his and applicant' s partition, respondent has deprived him to have an access on northern side of road. Wall has also diminished the value of the property.
12. ' From the perusal of deposition placed on record, it is found that though respondent had admitted the execution of partition deed dated 24-8-1980, but according to him, as the contents of said document were not read over and explained to him, therefore, he was unaware as to how, the partition was proposed. After registration of partition deed, dispute arose, when applicant raised a room on roof of respondent's house. It is the case of the respondent that as soon as he came in knowledge of the partition, deed he filed a suit for cancellation of that deed, but the plaint was ejected under Order VII Rule 11, C.P.C. Appeal was preferred against that order but till recording of the evidence of respondent in Suit No,258/1993 neither order passed in that suit for cancellation of partition deed nor the fate of appeal preferred by him before the District Judge, Hyderabad has been placed on record.
13. ' It appears from the deposition of applicant that prior to registration of partition deed dated 24-8- 1980 an agreement was also executed in between the share-holders of property on 5-8-1980 and a plan was also got designed by Al-Hamra Architects bifurcating portions of each share-holder. It is also admitted fact that in accordance with plan prepared by Al- Hamra Architects, in a settlement arrived at on 5-8-1980 possession was taken over by all the share-holders without having any formal wall in between them. It is also admitted by applicant that dispute arose when the wall was constructed by respondent. At the same time, it is admitted by him that he possesses more area to his share than the settlement already arrived at in between the parties on 5-8-1980.
14. ' From the perusal of the record it appears that neither the agreement dated 5-8-1980 has been disputed nor the contents of registered partition dated 24-8-1980 are questioned in suit or revision.
15. In fact alleged wall said to be raised by the respondent and the room intended to be constructed by applicant in portion of respondent has opened the field of litigation.
16. ' Indeed agreement dated 5-8-1980 is not a registered document, but execution of same has not been denied by either of the parties. Thus, when a statement in writing has been mutually agreed by all executants to be true, law of estoppel will apply and at later stage they cannot be allowed to take contradictory stand. It is a settled principle of law that principle of approbation and reprobation will apply with full force. Irrespective of all if the contents of both agreements and partition deed dated 5-8-1980 and 24-8-1980 are read together along with site plan prepared by Al-Hamra Architects with the consent of parties, it appears there is no difference as to the quantum of area to be acquired by the parties and how that partition is to be given effect in between the parties. It is crystal clear that there is no difference as to: settlement arrived in between the parties. Contents of both documents are altogether same. In the scenario of all, admission of the applicant having more area than to his share, it would be appropriate that a Commissioner be appointed to enforce the settlement arrived at in between the parties in terms of agreement and deed dated 5-8-1980 and 24-8-1980.
17. ' With these observations, revision application is hereby disposed of.
18. ' The Additional Registrar of this Court is directed to partition the property in between Abdul Rasheed and legal heirs of late Abdul Hafeez in accordance with the agreement and registered partition deed executed on 5-8-1980 and 24-8-1980 respectively as they are one and the same documents with no difference to their contents. Both the parties are directed to deposit the Commissioner's fee to the extent of Rs, ten thousand in equal share.