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1997 DIGILAW 774 (PAT)

Budhan Prasad Sah v. Urmila Devi

1997-10-28

S.N.JHA

body1997
Judgment S.N.Jha, J. 1. This civil revision arisen from order dated 16.1.37 passed by the 4th Subordinate Judge, Bhagalpur, in Title Suit No. 80 of 1995. By the impugned order the court below has rejected the petition filed 1 the plaintiff-petitioners to consolidate the suit with title suit No. 152 of 1993. The facts so far as relevant are as follows: 1. The opposite party Nos. 1 to 4 filed Title Suit No. 152 of 1993 seeking, inter aha a declaration that they are owners and title-holders in possession of tile suit kind fully described in Schedule 11 of the plaint and the defendant has no manner of concern with the same, and the survey entry in respect thereof in the name of the defendant is wrong illegal, void, without jurisdiction and not binding on the plaintiffs The sole defendant of the suit is Bhagalpur Municipal Corporation through its Administrator. The suit land as described in Schedule II of the plaint is a piece of land measuring 005 Hectare equivalent to 11 dhurs of plot No. 15) 67 Khata No. 1873 within ward No. 10 in Bhagalpur town. The opposite party claims the suit land on the basis of sale deed dated 10.11.60. 2 Petitioner No. 1 filed an application for intervention in the suit, which was dismissed. It is stated that the order was challenged in civil revision, which was also dismissed. It is stated that thereafter petitioner No. 2 (wife of petitioner No. 1) also filed similar application which met the same fate. They have filed the present suit i.e. Title Suit No. 80 of 1995 seeking a declaration of their right over the suit land described in Schedule B to the plaint. It may be mentioned here that the suit land is the same land, which is subject matter of Title Suit No. 152 of 1993, referred to above. 3. The application for consolidation of the two suits was filed on the ground that not only the parties to the two suits are common but the subject matter of the suit also is the same and the issues to be decided in the two suits also are identical. 4. 3. The application for consolidation of the two suits was filed on the ground that not only the parties to the two suits are common but the subject matter of the suit also is the same and the issues to be decided in the two suits also are identical. 4. Counsel for the opposite party submitted that if the two suits are consolidated, it would nullify the effect of the previous order passed by the court below as well as this Court by which the plaintiffs were denied intervention in Title Suit No. 152 of 1993. He also submitted that since the opposite party have sought declaration only against the Bhagalpur municipality the presence of the petitioners herein is not necessary and prior two suits cannot be consolidated. He stated that the suit (T.S. 152 of 1993) has been filed on the basis of the sale deed. 5. The fact that the subject matter of the two suits is the same and the parties are common is not disputed. It may be that in Title Suit No. 152 of 1993 the opposite party has sought declaration of title and injunction against the Bhagalpur Municipal Corporation alone but from paragraph 4 of the plaint it appears that suit land has been described as Rasta in the municipal records. It is to undo the effect of the said survey entry that the opposite party has filed the suit. It is to be kept in mind that what the petitioners seek is a declaration of the right of passage over the same land. It would have been in fitness of things if the petitioners had been allowed to intervene in the suit. Had this been done, the petitioners would not have been compelled to file suit of their own. Be that as it may, if Title Suit No. 152 of 1993 is allowed to proceed independently and decreed in favour of the opposite party, it may cause prejudice to the petitioners. There may also be chance of conflicting decrees being passed. The substance of the dispute being the same and the issues also thus being the same, it would be appropriate if the two suits are consolidated in order to avoid multiplicity/conflicting decrees, save the time of the Court, which in the long run will also be convenient to the parties. There may also be chance of conflicting decrees being passed. The substance of the dispute being the same and the issues also thus being the same, it would be appropriate if the two suits are consolidated in order to avoid multiplicity/conflicting decrees, save the time of the Court, which in the long run will also be convenient to the parties. The court below, in my view, committed error O; jurisdiction in rejecting the prayer for consolidation of the suits. 6. The impugned order dated 16.1.97 is, accordingly, set aside and the civil revision is allowed.