over twelve years. There was no defect of form in the suit, but a defect of substance, arising out of their inability to prove the �tle on which they had based their claim. They joined issues with the pe��oners on that basis, and allowed the suit to be fully tried to the end. It was only when they found that the trial Court did not uphold their �tle as claimed by them that they sought to withdraw the suit in order to start the li�ga�on afresh and ask for the same relief on a different basis. In allowing the suit to be withdrawn on this ground, the Assistant Judge acted without jurisdic�on, and his order can be corrected in revision under Sec�on 115 of the Civil Procedure Code as was done in Bhikaji v. Anant (1928) 31 Bom. L.R. 613 . It is urged that the Assistant Judge, in the exercise of his discre�on, has held the ground alleged by the plain�ffs for withdrawing the suit to be sufficient, and his discre�on cannot be interfered with in revision. It was so held in Ishar Das v. Aya Ram (1931) I.L.R. 13 Lah. 537, but in the present case there being no such ground as is contemplated by Clause (b) of Sub-rule (2), the ques�on whether it was sufficient did not arise, and in considering that ques�on and holding the ground to be sufficient, the learned Assistant Judge exercised a jurisdic�on which did not vest in him under the subrule. His order must, therefore, be set aside and the appeal heard and disposed of on its merits, as if the suit has not been withdrawn.”
