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2008 DIGILAW 884 (CAL)

Subinoy Nandi v. Gautam Daripa

2008-09-02

PRASENJIT MANDAL

body2008
JUDGMENT: PRASENJIT MANDAL, J. (1.) THIS application is directed against the order dated 01.08.2006 passed by the learned Civil Judge (Junior division), Additional Court, Bankura in Title Suit No. 1 of 2003 subsequently renumbered as Title Suit No. 23 of 2005 whereby he has rejected the petition under Section 10 of the Code of Civil procedure filed by the defendants. (2.) THE fact of the case in short is that the plaintiff/opposite party no.1 filed the Title Suit No. 132 of 1998 against three persons namely, Sukumar Nandi, Subinoy Nandi and Sumit Nandi, for declaration of his title in respect of "ka" schedule property and permanent injunction. That suit is pending. Thereafter, he filed another Title Suit No. 1 of 2003 praying for declaration that the sale deed dated 20. 11. 1996 executed in favour of the defendant nos. 1 and 2 is void and illegal and consequently the municipal plan for construction of a house thereon by the opposite party no. 2 is also void and illegal. He has also prayed for permanent injunction not to disturb his possession over the "ka" schedule property and not to make any construction on the property mentioned in schedule "ga" of the plaint. The defendants/petitioners herein are contesting the two suits. They have filed a written statement of defence in the respective suits. Issues have been framed. Now the defendants/petitioners herein have prayed for stay of the Title Suit No. 1 of 2003 under Section 10 of the Code of Civil Procedure. That petition was rejected by the impugned order. So the defendants/petitioners herein have preferred the present application. (3.) HAVING considered the submission of the learned Advocates of both the sides and on perusal of the record, I find that the contention of the petitioners is that suit properties in the two suits are same. Parties are also same. In the latter suit, the concerned Municipal Authority has been impleaded as party because it sanctioned the plan. So reliefs claimed by the plaintiff in the two suits are same. Therefore, the principle of stay as laid down in Section 10 of the C. P. C. is very much applicable in the instant situation and so the latter suit should be stayed till the disposal of the earlier suit that is Title Suit No. 132 of 1998 filed by the plaintiff/opposite party no. 1 herein. Therefore, the principle of stay as laid down in Section 10 of the C. P. C. is very much applicable in the instant situation and so the latter suit should be stayed till the disposal of the earlier suit that is Title Suit No. 132 of 1998 filed by the plaintiff/opposite party no. 1 herein. (4.) UPON perusal of the materials on record, I find that previously the plaintiff/opposite party no. 1 filed the Title Suit no. 132 of 1998 against three persons namely the Nandis" only. In that suit, the plaintiff prays for declaration of his title over the scheduled property mentioned in "ka" of the plaint and he has prayed for permanent injunction in respect of the property mentioned in schedule "kha" of that plaint. Undisputedly, the plaintiff/opposite party no. 1 is the owner of the schedule "ka" property mentioned in the earlier suit and the present Title Suit no. 1 of 2003. Now on perusal of the copy of the two plaints, I find the schedule "kha" property as mentioned in the earlier Title suit No. 132 of 1998 is the suit property mentioned in the schedule "ga" of the plaint of the latter Title Suit No. 1 of 2003. In the earlier suit, three persons, namely the Nandis" have been impleaded as defendants. But in the latter suit, the same plaintiff has mentioned Sumit Nandi and Subinoy Nandi as defendants but Sukumar Nandi has not been impleaded. It is the contention of the defendants/petitioners herein that Sukumar Nandi died. So the plaintiff/opposite party herein did not include sukumar Nandi as party to the suit. Be that as it may, I find that the plaintiff in the latter suit has claimed the relief for declaration that sale deed dated 20. 11. 1996 executed in favour of the defendants/petitioners in respect of the "ga" schedule property is void and illegal and that the plan sanctioned by the municipal Authority over such property is also void. So, if I consider the reliefs sought for in the latter suit by the plaintiff/opposite party no. 1 herein, I find that the reliefs sought for in the latter suit is completely different from the reliefs of the suit filed the same plaintiff earlier. So the issues and parties of the two suits are completely different. So, if I consider the reliefs sought for in the latter suit by the plaintiff/opposite party no. 1 herein, I find that the reliefs sought for in the latter suit is completely different from the reliefs of the suit filed the same plaintiff earlier. So the issues and parties of the two suits are completely different. (5.) IN consideration of the above facts and circumstances, I am of the view that the learned Civil Judge (Junior Division) has rightly held that the relief sought for by the plaintiff in the latter suit cannot decided in the earlier suit. Moreover, the relief sought for in the latter suit by the plaintiff against the municipal Authority cannot be heard and decided by the first suit. Therefore, the learned Civil Judge has rightly held that the issues of the two suits are not identical and that the parties are not also the same. (6.) IN the circumstances, I hold that the application is devoid of merits. There is nothing to interfere with the impugned order. Accordingly, the application is dismissed. Considering the circumstances, there will be no order as to costs. Interim order, if any, is hereby vacated.