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2005 DIGILAW 571 (PAT)

Smt. Balkeshwari Devi v. Laxmi Narayan Singh

2005-06-30

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioners are defendants in Title Suit No. 38 of 2000, which was filed by the plaintiffs-opposite parties No. 1 to 3 for partition of their land detailed in the Schedule of the plaint (Annexure-2). 3. The petitioners are aggrieved by order dated 5.10.2004 passed in the aforesaid suit, by which the learned Subordinate Judge II, Lakhisarai dismissed their petition u/s. 10 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity for stay of that suit till, the disposal of the previously instituted Title Suit No. 42 of 2000, which was filed by the petitioners. 4. Learned counsel for the petitioners submits that they had filed Title Suit No. 42/2000 on 22.6.2000 in the Court of the learned Munsif II, Begusarai for declaration of their 2/3rd share in the suit properties detailed in the Schedule of the plaint of that suit (Annexure-3) and also for declaration that the judgment and decree dated 19.5.1999 passed in Title Suit No. 74/1998 by the learned Munsif II, Begusarai was illegal, fraudulent and not binding upon them and also challenging the sale deed dated 24.11.1956 executed by Mst. Janki Devi in the name of Babu Banbari Rai, who was the ancestor of the plaintiffs and the petitioners of this case. 5. Learned counsel for the petitioners further submits that opposite party 1st set subsequently filed Title Suit No. 38 of 2000 before the learned Subordinate Judge 1, Lakhisarai on 10.11,2000 for partition of their shares in the suit properties. Learned counsel for the petitioners also avers that Title Suit No. 42/2000 was filed much prior to Title Suit No. 38/2000 and in Title Suit No. 42/2000 the parties and the properties were the same as that of T.S. No. 38/2000 and the matter in issue was also substantially the same, hence there was no occasion for continuance of the subsequently filed T.S. No. 38/2000 but without considering the said facts and circumstances the learned Court below rejected their petition u/s. 10 of the Code. 6. On the other hand, learned counsel for the plaintiffs-opposite parties vehemently controverts the contentions of the learned counsel for the petitioners and submits that parties of both the suits were not exactly the same. 6. On the other hand, learned counsel for the plaintiffs-opposite parties vehemently controverts the contentions of the learned counsel for the petitioners and submits that parties of both the suits were not exactly the same. He further submits that the matters in issue in both the suits are also different as in T.S. No. 42/2000 an earlier decree as well as a 48 years old deed has been challenged, which were not the reliefs in T.S. No. 38/2000. Hence, he submits that neither the parties to the suits nor the matter in issue being the same the learned Court below was quite justified in rejecting the petition of the petitioners. 7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that all the parties in subsequently filed T.S. No. 38 of 2000 are impleaded in the previously filed T.S. No. 42/2000, whereas all the reliefs also claimed in the subsequently filed T.S. No. 38/2000 are included in T.S. No. 42/2000. Furthermore, the lands involved in the two suites are also the same. 8. So far the challenge of the earlier sale deed and the earlier decree in T.S. No. 42/2000 are concerned, it is quite apparent from the plaint of T.S. No. 38/2000 that the plaintiffs of that suit have based their claim on the said deed and on the said judgment and decree in paragraphs 7 and 14 of their plaint. Furthermore, there being some more parties in the previously instituted suit can also not be of any help to the opposite parties as it is clear that the previously instituted T.S. No. 42/2000 covers the entire spectrum of the claims of both the parties. Learned counsel for the petitioners has thus rightly relied upon the decisions of the various High Courts reported in - (Jai Hind Iron Mart V/s. Tulsiram Bhagwandas), -, Shorab Merwanji Modi and Anr. V/s. Mansata Film Distributors and Anr. , -, Sagar Shamsher Jung Bahadur Rana and Anr. V/s. The Union of India and Ors. , and 2004 (3) BBCJ 27 , Janki Devi and Anr. V/s. Ramanandan Prasad. In the aforesaid facts and circumstances, it was the duty of the Court below to pass order in accordance with the provision of sec. 10 of the Code, which clearly requires that in these circumstances the subsequently filed title suit should have been stayed. , and 2004 (3) BBCJ 27 , Janki Devi and Anr. V/s. Ramanandan Prasad. In the aforesaid facts and circumstances, it was the duty of the Court below to pass order in accordance with the provision of sec. 10 of the Code, which clearly requires that in these circumstances the subsequently filed title suit should have been stayed. Hence I find that the learned Court below has committed jurisdictional error in exercising its jurisdiction wrongly and decided the matter illegally and with material irregularity. Accordingly, I hereby allow this civil revision, set aside the impugned order and direct the learned Court below to stay the further proceedings of Title Suit No. 38/2000 pending before the learned Subordinate Judge II, Lakhisarai till disposal of Title Suit No. 42/2000, which is pending before the learned Munsif II, Begussrai.