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2006 DIGILAW 252 (PAT)

Sampati Devi v. Ganga Devi

2006-03-22

NAVANITI PRASAD SINGH

body2006
Judgment 1. This revision application is directed against the order dated 12.5.2000 passed in Title Suit No. 87 of 1996 by the learned Sub-Judge III, Katihar, whereby the application of defendant no. 1 in the said suit filed in terms of Section 10 of the Code of Civil Procedure for staying the suit in view of earlier suit being Title Suit No. 44 of 1978, as between the same parties, substantially involving the same issue, has been rejected. The second suit would have to be stayed awaiting finality of the earlier suit. 2. Ordinarily, Section 10 of C.P.C. applies when during the pendency of the first suit another suit, as between the same parties, involving substantially same issue has been brought to avoid the multiplicity of the suit. Section 11 C.P.C. contains the rule of res judicata whereby a judgment having attained finality is used to stop agitating the same issue in another suit. 3. The first suit i.e. Title Suit No. 44 of 1978 was ostensively brought for partition. In the said suit the present defendant no. 1 was defendant no. 5 being purchaser of properties which were said to be held in unity and liable to be partitioned. In the first suit issue no. 4, as framed by the court was"Is there unity of title and possession between the parties over the suit land?" The said first suit proceeded for trial and judgment was delivered by the 2nd Additional Sub-Judge, Katihar, on 21.1.1981 followed by a preliminary decree in the said partition suit by which the share of the plaintiff was declared to be 2/5th in the joint family property. 4. While dealing with issue no. 4, as indicated above, before the trial court the parties led evidences as to the right, title, interest and possession over various properties including the properties appertaining to C.S. plot no. 370, part of which had been purchased by defendant no. 5 in that suit, being defendant no. 1-petitioner in the present suit. The trial court while dealing with the issue has, inter alia, held: "There is no difficulty in holding that the remaining area of the land of C.S. plot no. 370 is still intact and is in. joint possession of the plaintiff and defendant nos. 1 and 3. I also hold that defendant no. 1-petitioner in the present suit. The trial court while dealing with the issue has, inter alia, held: "There is no difficulty in holding that the remaining area of the land of C.S. plot no. 370 is still intact and is in. joint possession of the plaintiff and defendant nos. 1 and 3. I also hold that defendant no. 5 is in possession of 3 katha land by pole of 4 1/2 cubits in C.S. plot no. 370 on the basis of the sale deed dated 15.1.1970. I also hold that the remaining area of C.S. plot nos. 370 and 366 are in joint possession of the plaintiff and the defendants." 5. From the aforesaid findings it would be seen that not only the issue that is being raised in the subsequent suit instituted long after the judgment delivered in the first suit is substantially the same but the parties are litigating under the same title. 6. The findings in the first suit would ordinarily be res judicata so far as the issue in the second suit is concerned but from the judgment in the first suit a Title Appeal is pending. It is elementary that an appeal is nothing but is a continuation of the suit and it can safely be said that the first suit is pending. 7. As indicated above the parties being the same and the issue being substantially same in the two proceedings, in view of Section 10 of C.P.C. it was obligatory on the part of the trial court to stay the second suit and allow the first suit to attain the finality. It is not to be understood that the second suit stands dismissed. It is only kept in abeyance awaiting finality of same issue in an earlier instituted suit. Unless it attained the finality, it could not be used as res judicata or otherwise in the second suit saving the time of the court and reagitating the matter by reopening the matter. 8. I accordingly hold that the learned Trial Judge failed to appreciate two sections and in view of Section 10 C.P.C. failed to exercise its jurisdiction and accordingly the impugned order is set aside. It is ordered that the subsequent suit being T.S. No. 87 of 1996 shall remain stayed till the proceeding in the first suit attained the finality. 9. I order accordingly.