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2002 DIGILAW 121 (HP)

MANSA DEVI v. REWAT RAM

2002-04-30

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This revision petition arises out of the orders of learned. Sub Judge 1st Class Sarkaghat, District Mandi, dated 20.9.1999. 2. It appears, Rawat Ram plaintiff-respondent herein filed a suit on 15.7.1997 before the learned Sub Judge, 1st Class, Sarkaghat for permanent prohibitory injunction against the defendants Mansa Devi, Balwant, Hem Raj and Janki Devi with the allegations that he was owner in possession of the suit property and the defendants without any right, title or interest were interfering in the possession of the plaintiff over the suit land by destroying the maize crop and paddy crops. This suit was registered as Civil Suit No. 150 of 1997. According to the plaintiff Rawat Ram, the suit property was earlier joint but after consolidation and partition, fell in the share of plaintiff and the plaintiff was put in possession by the concerned revenue authorities, vide rapat roj namcha No. 290 dated 9.6.1997. The defendants in that case, namely, Mansa Devi, Balwant, Hem Raj and Janki Devi filed written statement stating therein that the suit was not maintainable. They claimed that the defendants had also filed a Civil Suit against the plaintiff Rewat Ram and that the plaintiff Rewat Ram by a fictitious release deed, got the land mutated in his name, which action was wrong, illegal and not binding on the rights of the defendants. The defendants raised plea of adverse possession over the suit property. The defendants pleaded "thus the defendants have become owner by way of adverse possession since 12.3.1975 to the knowledge of the plaintiff and the, sisters." 3. The defendants raised plea of adverse possession over the suit property. The defendants pleaded "thus the defendants have become owner by way of adverse possession since 12.3.1975 to the knowledge of the plaintiff and the, sisters." 3. On 1.12.1997, Mansa Devi, Balwant Singh and Hem Raj filed a suit against Rewat Ram and others for declaration that Mansa Devi, Balwant Singh and Hem Raj have become owners by way of adverse possession of 1/3 and 1/18 shares out of 1/6 and 1/36 share of the defendants No. 2 to 4, namely, Sarswati, Sukhan Devi and Indri of the land in the release deed executed by the defendants No. 2 to 4 in favour of defendant No.l Rewat Ram and the release deed executed by defendants 2 to 4 in favour of defendant No. 1 be declared as void and inoperative qua the rights of the plaintiffs to the extent of 1/3 and 1/18 share respectively and that the defendant Rewat Ram be also restrained from causing any interference in the land subject matter of dispute. 4. The case of Mansa Devi and others was that after the death of Narain Singh on 12.3.1975 the suit land remained in possession of the predecessor-in-interest of Mansa Devi, Balwant Singh and Hem Raj and defendants No. 2 to 4, namely, Sarswati, Sukhan Devi and Indri stood ousted on the death of Narain Singh as they were never put in possession of the suit property, and, therefore, the release deed executed by defendants 2 to 4 in favour of Rewat Ram was illegal, void and result of undue influence and coercion. 5. It appears, Mansa Devi, Balwant Singh and Hem Raj filed an application under Section 10 of the Code of Civil Procedure (in short as "Code") stating therein that the suit filed by Rewat Ram was liable to be stayed inasmuch as Mansa Devi, Balwant Singh and Hem Raj had claimed adverse possession over the suit property in both the suits. The learned trial Judge vide his orders dated 8.6.1999 dismissed the application holding that Rewat Ram filed his suit on 15.7.1997, whereas the defendants filed their suit subsequently on 1.12.1997 (wrongly stated in the order as 1.8.1997). The suit filed by Rewat Ram is former in institution, therefore, that suit was not liable to be stayed under Section 10 of the Code. 6. The suit filed by Rewat Ram is former in institution, therefore, that suit was not liable to be stayed under Section 10 of the Code. 6. In the suit filed by Mansa Devi, Balwant Singh and Hem Raj, Rewat Ram moved an application for stay of that suit. Learned trial Judge by the impugned orders allowed the application and directed stay of the suit (Civil Suit No. 230 of 1997) filed by Mansa Devi, Balwant Singh and Hem Raj on the grounds that in this suit Mansa Devi, Balwant Singh and Hem Raj had claimed their adverse possession over the suit property and this matter is directly and substantially in issue in the previously instituted suit filed by Rewat Ram. It was also noticed that in the previously instituted suit Mansa Devi, Balwant Singh, Hem Raj along with proforma defendant No. 6 were made parties in that suit and Bimla Devi and Nirmala were made proforma defendants and no relief was sought against them. 7. Aggrieved Mansa Devi, Balwant Singh and Hem Raj are in this revision petition. I have heard the learned Counsel for the parties and gone through the record. Section 10 of the Code provides for stay of the suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court. Section 10 may be reproduced for the convenience: "10. Section 10 may be reproduced for the convenience: "10. Stay of suit: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." Perusal of Section 10 of the Code shows that the court precluded from proceeding with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending between them and court is competent to grant the relief. The provisions of Section 10 of the Code, in my view are clear and mandatory. The Court, in which the subsequent suit is filed cannot proceed with the trial of the suit, if the conditions stipulated in Section 10 of the Code are fulfilled. 8. The object of this Rules is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. This is to obviate the contradictory verdicts by two or more courts in respect of the same relief and also to avoid multiplicity of the proceedings and to avoid inconvenience to the parties. (See Indian Bank v. Maharashtra State Co-op. Federation, 1998 (5) SCC 69). 9. It is true that before Section 10 is made applicable it must be shown that the matter in issue in both the suits is the same i.e. the entire subject matter of two suits must be identical, though it is not necessary for applicability of Section 10 of the Code that all the issues in the previously instituted suit must also be the issues in the subsequently instituted suit nor is it essential that the reliefs claimed in both the suits should be identical. (See Mehta Gandhi Associates v. Shree Pipes, AIR 1990 Del 139; Bijendra v. Basant Kumar, AIR 1994 All 81; Virenda v. Indira, AIR 1995 Ker. 57). 10. (See Mehta Gandhi Associates v. Shree Pipes, AIR 1990 Del 139; Bijendra v. Basant Kumar, AIR 1994 All 81; Virenda v. Indira, AIR 1995 Ker. 57). 10. Similarly, expression "same parties" means the parties between whom the matter substantially in issue has arisen and has to be decided. Complete identity of parties is not requirement of Section 10 of the Code. For applicability of Section 10 of the Code, it is necessary that final decision which may be reached in previously instituted suit would operate as res judicata in the subsequent suit. Privy Council in Annamalay Chetty v. B.A. Thornhill, AIR 1931 PC 263, observed that if the decision of one suit would have the effect of being res judicata in respect of the issues arising in the subsequently instituted suit, then it would not be proper to proceed with the trial of the subsequent suit and proper course for the court is to stay the subsequent suit. 11. In the present case, as rightly observed by the trial Court, Mansa Devi, Balwant Singh and Hem Raj had claimed adverse possession on the suit property in the previously instituted suit filed by Rewat Ram defendant in Civil Suit No. 230 of 1997, learned trial Court was right in observing that if the plea of adverse possession is proved in previously instituted suit, then the release deed will have no value and that would be nullified. Mansa Devi, Balwant Singh and Hem Raj claimed their adverse possession in the suit filed against Rewat Ram and others, therefore, the matter in issue in both the suits was directly and substantially the same. No fault can be found with the order recorded the learned trial Judge. There is no merit in this revision petition and the same is dismissed. There will be no order as to costs. Records of the trial Court be remitted back to the concerned court forthwith. Petition dismissed.