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2004 DIGILAW 435 (PAT)

Janki Devi v. Ramnandan Prasad

2004-04-15

body2004
ORDER Heard learned counsel for the petitioners. No one appears on behalf of the Opposite party inspite of service of notices sent to them. 2. This civil revision has been filed on behalf of the defendants-petitioners challenging the order dated 21.5.2002 passed by the learned Sub-Judge-IV, Nawadah, in Title Suit No. 50/98 by which the defendants' petition under Section 10 C.P.C. for stay of the aforesaid suit during the pendency of Partition Suit No. 18/98 was dismissed. 3. The learned counsel for the defendants-petitioners submitted that the properties in dispute in both the suits, namely, Title Suit No. 50/98 and Partition Suit No. 18/98 were the same. He also submitted that the parties impleaded in Title Suit No. 50/98 were also the same as in Partition Suit No. 18/98 except purchaser from one of the co-shareres who could not be impleaded in the Partition Suit as the sale was made subsequent to the filing of the said Partition Suit, whereas Title Suit having been filed after the said sale, the said purchasers were impleaded in the Title Suit. The learned counsel for the petitioner further contended that as the Partition Suit No. 18/98 was filed on 16.1.98 by Dhanmanti Devi, (Defendant-petitioner no. 2 in the instant revision) for partition of the entire property claiming that her father Khedan Mahto had died after 1956 leaving behind a widow Lachho Kuar and four daughters, namely, Sitabiya Devi, Swarup Devi, Janki Devi and Dhanmanti Devi. He also contended that after filing of the Partition Suit No.18/98 said Dhanmanti Devi alongwith Janki Devi executed four registered sale-deeds in February, 1998 in favour of some third person and hence the heirs of Sitabiya Devi filed Title Suit No. 50/98 in May, 1998, for declaration that the said sale-deeds were illegal, inoperative etc. In the said Title Suit the heirs of Sitabiya Devi (Opppsite party of this civil revision) claimed that Khedan Mahto died before 1956 and hence his daughters did not inherit any things from their father and the entire property devolved upon Lachho Kuar who executed the registered deed of gift of the entire property to the Opposite party, namely, Ramnandan Prasad (Son of Sitabiya Devi). Hence, he claimed that the issues involved as well as the subject matter of both the suits were the same. 4. Hence, he claimed that the issues involved as well as the subject matter of both the suits were the same. 4. From the perusal of records it is quite apparent that the main issue involved in both the suits are that whether Khedan Mahto died before or after 1956 and that whether Lachho Kuar inherited the properties exclusively or alongwith her daughters and that whether Lachho Kuar was entitled to execute the deed of gift of the entire property to her grand-son Ramnandan Prasad (Opposite party). It is also evident that only after the decision of these issues, the validity of the sale-deeds of February, 1998, executed by Janki Devi and Dhanmanti Devi in favour of strangers can be decided. This view also finds support from a case Jai Hind Iron Mart Vs. Tulsiram Bhagwandas reported in AIR 1953 Bombay, 117, referred by the learned counsel for the petitioners, which specifically held that for any decision under Section 10 C.P.C. the jurisdiction of the Court and not the procedure is relevant and that issues may not be the same, But even if they are substantially and materially similar the said provision would apply. 5. The learned Court below without considering the aforesaid facts and circumstances as well as specific provisions of law, namely, Section 10 C.P.C. and the relevant case law has passed the impugned order assuming that the parties were not the same and the subject matter of the two suits were also not the same. 6. In the aforesaid circumstances, the impugned order of the learned Court below dated 21.5.2002 passed by the learned Sub-Judge-IV, Nawadah, in Title Suit No. 50/98 is hereby set aside and the claim of the defendants-petitioners as per the provision of Section 10 C.P.C. is upheld directing that the Title Suit No. 50/98 pending before the aforesaid learned Court shall remain stayed till the disposal of the Partition Suit No.18/98 pending before the learned Munsif, Nawadah. 7. With the aforesaid directions and observations, this civil revision is allowed.