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2007 DIGILAW 59 (CAL)

JAYANTA KUMAR MONDAL v. BROJO GOPAL DALAL

2007-02-05

KALIDAS MUKHERJEE

body2007
( 1 ) THIS application under Article 227 of the Constitution of India is directed against the Order No. 64 dated 28. 09. 2005 passed by the learned additional Civil Judge (Jr. Division), Ghatal allowing the application under section 10 of the Code of Civil Procedure, in Title Suit No. 4 of 2003. The plaintiffs/petitioners filed a suit bearing T. S. No. 6 of 2002 (Renumbered as t. S. No. 4 of 2003) against the defendants/opposite parties in the Court of civil Judge (Jr. Division), Ghatal, praying for declaration and for injunction in respect of the suit premises. The case of the plaintiffs/petitioners, in short, is that they have got 27-5/12 decimals of land out of 33 decimals in the "kha" Schedule property by way of purchase from the heirs of Naba kumar Dobey. The rest 5-7/12 decimals out of 33 decimals has been purchased by Bibekananda Bayam Samiti. "ka" Schedule is included in the "kha" Schedule property. Naba Kumar Dobey was the owner of "kha" schedule property under Plot No. 211 measuring 33 decimals. After the death of Naba Kumar Dobey, his legal heirs and representatives are four sons, six daughters and wife. The wife and one daughter died and the rest of the heirs are owners of the "kha' Schedule property in equal shares. One Partition Suit being T. S. No. 132 of 1991 was filed regarding "kha" schedule Property and the said Partition Suit was decreed finally and partition by metes and bounds was held in between the co-shares of the said property. The plaintiffs are the owners and in possession fo the "ka" schedule property. The shop rooms belong of the "ka" Schedule property. The defendant No. 1 is a tenant under the previous owner and now has become a tenant under the plaintifs. But the defendant did not pay the monthly rent to the plaintiffs and, as such, the defendant is a defaulter in payment of rent. On 22. 12. 2001 the defendant illegally started a new construction after breaking the old wall without any sanctioned plan from the appropriate authority and without the consent of the plaintiffs'. But the defendant did not pay the monthly rent to the plaintiffs and, as such, the defendant is a defaulter in payment of rent. On 22. 12. 2001 the defendant illegally started a new construction after breaking the old wall without any sanctioned plan from the appropriate authority and without the consent of the plaintiffs'. Under such circumstances, the petitioners filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for an order of injunction over "ka" Schedule property restraining the defendants by an order of injunction from changing nature and character of the suit property and/or making any construction in the "ka" Schedule property. The ad-interim order was granted directing the parties to maintain status-quo. The defendant nos. 1 and 2/o. Ps. contested the suit by filing written statement. The defendant no. 2 in her written statement claimed to have purchased 2 decimals of land out of the suit property from Shib Shankar Dobey on 11. 09. 1995 by a registered deed of sale. On 07. 10. 2004 the defendant No. 2 filed an application u'nder Section 10 of the C. P. C. praying for stay of all further proceedings of the instant suit until the disposal of O. S. No. 8 of 1988 stating, inter alia, that one of the legatees of the will has filed a Misc Case No. 41 of 1989 (O. S. 8 of 1998) before the learned Civil Judge (Jr. Divsion), Ghatal praying for letters of Administration of that Will. That application has subsequently become contentious and at present it is pending before the learned Additional District Judge, 3rd Court, Midnapore being O. S. No. 8 of 1998. The plaintiffs have been impleaded in the said case and the defendant has also been added as party threin. The petitioners/plaintiffs contested the said application by filing a written objection. The subject matter or O. S. No. 8 of 1998 and the instant suit are not the same. The matter in issue in both the cases are also not the same and, as such, the stay application filed by the defendant No. 2 is liable to be dismissed. The learned Additional civil Judge (Jr. Division) Ghatal after hearing the parties has been pleased to allow the application under Section 10 of the C. P. C. granting stay of all further proceedings of the suit. The learned Additional civil Judge (Jr. Division) Ghatal after hearing the parties has been pleased to allow the application under Section 10 of the C. P. C. granting stay of all further proceedings of the suit. ( 2 ) THE learned Advocate appearing on behalf of the petitioners submitted that in a probate proceeding the question of title is not involved and the matter in issue in the suit is not directly and substantially the same in probate proceeding being O. S. No. 8 of 1998. It is contended that the suit has been filed praying for a declaration that the defendant has no right to change the nature and character of the suit property. In this connection, the learned Counsel has referred to and cited the decisions reported in AIR 2006 Patna 164 para-7 [chandra Madhav Mishra and Anr. v. Braj Kishore mishra and Ors. ]; AIR 1985 Cal 154 para-5 [adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd. and Anr. ,]; AIR 1999 Pat 103 para-11 [smt. Tara Dew v. Smt. Kamala Gupta and Ors. ]; AIR 1985 Cal 154 paras 6, 7 [adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd. and Anr. ] and (2005)2 WBLR (Cal) 713 para-17 [ashoke Himmatsinghka v. Rajendra kumar Himmatsinghka and Ors. ] ( 3 ) THE learned Advocate appearing on behalf of the defendants/ opposite parties had submitted that in the suit the plaintiffs have claimed that the defendans are tenants under them ; that Naba Kumar Dubey was the original owner who executed the Will and died leaving four sons. It is further contended that the defendant purchased 2 decimals of land from one of the sons of Naba Kumar Dubey-one of the legatees of the Will. It is contended that the defendants are not the tenants but they purchased the property. It is the further contention of the leaned Advocate for the defendants/opposite parties that the question of title in respect of 2 decimals of land is also the subject matter of determination of title of the vendors in the Probate Suit. In this connection learned Counsel has referred to and cited the decisions reported in AIR 1978 Delhi 221 [c. L. Tandon v. Prem pal Singh Rawat and Ors. ]; AIR 1972 Cal 128 [arun General Industries Ltd. v. Rishabh Manufactures Private Ltd. and Ors. In this connection learned Counsel has referred to and cited the decisions reported in AIR 1978 Delhi 221 [c. L. Tandon v. Prem pal Singh Rawat and Ors. ]; AIR 1972 Cal 128 [arun General Industries Ltd. v. Rishabh Manufactures Private Ltd. and Ors. ]; AIR 1971 Cal 345 [life pharmaceuticals (Private) Ltd. v. Bengal Medical Half]; AIR 1994 Pat 76 [shri Ram Tiwary and Anrv. Bholi Devi and Anr. ] and (2006)4 ICC [ashok Kumar yadav v. Novel Designs Pvt. Ltd. ] ( 4 ) NABA Kumar Dubey was the original owner of the Suit property who is said to have executed a Will leaving four sons as it appears from the pleadings. The defendant claimed to have purchased two decimals from one of the sons of Naba Kumar Dubey. The probate case has been instituted by one of the legatees of the Will and the present parties are said to have been impleaded therein. In the decision reported in AIR 2006 Patna 164 (supra) para-7 it has been held that in a probate proceeding the only thing the Court does it is to declare upon the validity of execution of Will in respect of the properties mentioned threin and the jurisdiction of the two proceedings are different and exclusive and one Court cannot stay proceedings pending decision of the other. In another decision reported in (2005)2 WBLR Cal 713-17 (supra) it has been held that stay of the Partition Suit on the ground of probate is not justified and the stay order has been set aside. In the decision reported in AIR 1985 Calcutta 154 paras 5, 6 and 7 (supra) it has been held that in order to attract Section 10, the subject matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit and that merely because one of the questions in issue is the same as in the other suit would not make the subject matter identical. The instant suit has been filed by the plaintiffs contending that the defendant is a tenant and he may be restrained from changing the nature and character of the suit property. The contention of the defendant in the suit is that they purchased 2 decimals from one of the legatees of the Will and has been prossessing the property as the purchaser. The contention of the defendant in the suit is that they purchased 2 decimals from one of the legatees of the Will and has been prossessing the property as the purchaser. The jurisdiction of the Court in probate proceeding is different and the matter in issue in the suit is not directly and substantially the same with the earlier proceeding i. e. the probate suit. Under such circumstances the provision of Section 10 of the c. P. C. is not attracted. The facts of the cases cited by the learned Advocate for the O. Ps. are different and the principles laid down therein are not applicable in the facts and circumstances of the instant case. The learned court below, therefore, committed illegality and material irregularity in allowing the application under Section 10 of the C. P. C. and the impugned order passed by the learned Court below is set aside. The application under article 227 of the Constitution of India filed by the plaintiffs/petitioners is thus allowed with no order as to costs.