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2017 DIGILAW 1726 (JHR)

Md. Humayun S/o Late Abdul Mazid v. Md. Belal

2017-10-05

SHREE CHANDRASHEKHAR

body2017
JUDGMENT : 1. The petitioner is aggrieved of order dated 17.02.2011 passed in Title Suit No.25 of 2006. 2. The petitioner is one of the defendants in Title Suit No.25 of 2006. He is defendant no.1 (defendant 1st set) in Partition Suit No.80 of 2005. In the partition suit there are as many as 8 defendants; defendant no.9 has been described as proforma-defendant. Suit schedule property in P.S. No.80 of 2005 is a house property comprising one Pakka room, Well, two shops, courtyard and Bari at Mohalla Kund, P.O. and P.S. Daltonganj under holding no.124, plot no.504 area is measuring 0.09 acres. In the plaint it is pleaded that there are tenants in suit schedule property. 3. The petitioner is defendant no.1 in Title Suit No.25 of 2006, in which plaintiff in P.S. No.80 of 2005 has been arrayed as defendant no.2. The suit schedule property in Title Suit No.25 of 2006 has been described as residential house within plot no.504 at Mohalla-Kund, P.O. & P.S. Daltonganj, area about 0.09 acres. Plaintiffs, as many as six in number, in Title Suit No.25 of 2006 have laid a claim over the suit schedule property by challenging the lease-deed no.3023 of 1994 registered on 26.08.2000. They have sought a declaration that the lease-deed dated 26.08.2000 is illegal and not binding on them. 4. Bar under section 10 of Code of Civil Procedure provides that a court should not proceed with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title, irrespective of the fact that both the suits may be pending in the same or any other court of competent jurisdiction. The principle behind section 10 C.P.C. is that, if an adjudication of the dispute between the same parties in a previously instituted suit would constitute res-judicata to the subsequently instituted suit, proceeding in the later suit shall remain stayed for avoiding conflicting decisions in both the suits [refer “Aspi Jal & Anr. Vs. Khushroo Rustom Dadyburjor” reported in (2013) 4 SCC 333 ]. 5. In the present proceeding, relief sought by the plaintiffs in T.S. No.25 of 2006 and P.S. No.80 of 2005 is entirely different. Parties in both the suits are also different. Vs. Khushroo Rustom Dadyburjor” reported in (2013) 4 SCC 333 ]. 5. In the present proceeding, relief sought by the plaintiffs in T.S. No.25 of 2006 and P.S. No.80 of 2005 is entirely different. Parties in both the suits are also different. Evidently, necessary conditions for an order under section 10 C.P.C. are not present in the instant case. 6. Finding no infirmity in the impugned order dated 17.02.2011 passed in Title Suit No.25 of 2006, the writ petition is dismissed.