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2012 DIGILAW 1755 (RAJ)

Atma Singh v. Narendra Saini

2012-08-13

GOPAL KRISHAN VYAS

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JUDGMENT : Gopal Krishan Vyas, J. Instant writ petition has been filed by the defendant petitioners against order dated 18.04.2007 passed by the Civil Judge (Jr.Dn.), Tibbi (district Hanumangarh), by which an application filed under Section 10, read with Section 151, Civil Procedure Code to stay the proceedings of Suit No. 30/2004 was rejected. 2. Learned counsel for the petitioners submits that a suit for declaration was filed by respondent-plaintiffs Narendra Saini and Ranjana Saini alleging therein that her father respondent No.3 Jarnail Singh was having land situated in Talwara Jheel 35 Area in abadi which was part of the former Jagirdar and Pattidar after the formation of the Panchayat; and said area came in the area of the Gram Panchayat and the Gram Panchayat became owner of the land. Though no sale or allotment was made by the Gram Panchayat, however, land was earmarked for the public use. In the suit, it was stated that an oral family settlement was made between her and her father Jarnail Singh about 14-15 years back for existence of the way. 3. Reply was filed by the petitioner-defendant and they denied that any partition has been made between Jarnail Singh and his daughter and respondent-plaintiffs are residing with Jarnail Singh as joint family and further it is stated that map produced by the plaintiffs and disputed land which is shown as public lane is also denied and it is submitted that this lane is for residential use of respondents No.1 to 5. The present petitioners, as per the family settlement and decision arrived at in the Panchayat, the lane was closed and respondent Jarnail Singh got other public way. It is further stated that the plaintiff were having full knowledge of the meeting of the Gram Panchayat held on 30.04.1990 and 28.10.2001. This ground was taken in the suit filed before the trial Court earlier which was registered as Suit No.26/2001. 4. The defendant-petitioners filed an application under Section 10, read with Section 151, Civil Procedure Code, in which, it is stated that initially the suit was filed before the trial Court bearing Suit No.26/2001 and the said suit was dismissed by the trial Court on 17.09.2003, against which, appeal was preferred before the District Judge, Hanumangarh and District Judge, Hanumangarh allowed the appeal No.66/2003 vide judgment dated 01.04.2004 by which order dated 17.09.2003 was reversed. Against aforesaid judgment, Atmaram and others preferred Second Appeal No. 99/2004 before this Court which is pending for decision, in which questions with regard to agreement Ex.A 13 have been framed, therefore, in the subsequent suit before the trial Court an application under Section 10, read with Section 151. Civil Procedure Code to stay the proceedings of the suit till decision of the above second appeal was filed. 5. Learned counsel for the petitioners submits that application filed by the petitioner-defendants was dismissed vide impugned order dated 18.04.2007 in which it is observed that respondent No.6 Jarnail Singh was not party in the earlier suit and issues framed with regard to validity of both documents dated 30.04.1990 and 28.10.2001 were not in existence and now both the documents are under challenge in the suit for which issues have been framed. Therefore, the subject-matter in both the suits is altogether different. But in fact as per learned counsel for the petitioners, the said finding is not correct because the earlier suit was filed on the strength of agreement arrived at between plaintiff Rajana and her father Jarnail Singh whereas in the subsequent suit the respondent-plaintiffs are challenging documents dated 30.04.1990 and 28.10.2001. Learned trial Court ought to have considered the above aspect of the matter while deciding the application filed under Section 10, read with Section 151, Civil Procedure Code to stay the proceedings of the suit till decision of the aforesaid Second Appeal which is pending before this Court. 6. Per contra, learned counsel for the respondents submits that in the earlier suit the validity of the family settlement and agreement said to have been made in the Panchayat were not challenged whereas, in the subsequent suit, both these documents are under challenge. Further, it is submitted that Jarnail Singh was not party who was alleged to be member of the family settlement and, in this suit, the plaintiffs are challenging the validity of the family settlement which was not subject-matter of the earlier suit, therefore, there is no error in the order impugned. 7. After hearing learned counsel for the parties, I have perused the order impugned dated 18.04.2007 and order-sheet dated 12.04.2006 of S.B. Civil Second Appeal No.99/ 2004, in which, while admitting the second appeal three questions were framed. 8. 7. After hearing learned counsel for the parties, I have perused the order impugned dated 18.04.2007 and order-sheet dated 12.04.2006 of S.B. Civil Second Appeal No.99/ 2004, in which, while admitting the second appeal three questions were framed. 8. Out of the 3 questions framed in the second appeal, following question No.1 was framed : "(1) Whether the lower appellate court committed error of law by not appreciating that the foundation of the suit was agreement Ex. A 13 as pleaded by the plaintiff in his plaint in para No. 5 and, therefore, the gate was put in terms of the agreement between both the parties?" 9. I have perused the prayer made in the present suit by the respondent-plaintiffs which reads as under : HINDI MATTER 408549 10. Upon perusal of the question framed by the co-ordinate bench as well as prayer made in the subsequent suit, I am of the opinion that subject-matter of both the suits is altogether different, therefore, the learned trial Court has rightly rejected the application filed by the petitioner-defendants to stay the proceedings of the civil suit No. 30/2004, pending in the Court of Civil Judge (Jr.Dn.), Tibbi (District Hanumangarh). 11. In view of the above, no case is made out for interference in the order impugned. Hence, this writ petition filed under Article 227 of the Constitution of India is dismissed. 12. It is, however, made clear that dismissal of this writ petition will not restrict the petitioners to raise their ground with regard to existence of the document in S.B. Civil Second Appeal No.99/2004.