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2017 DIGILAW 2157 (JHR)

Nandlal Yadav v. Jiblal Yadav

2017-12-14

SHREE CHANDRASHEKHAR

body2017
JUDGMENT Shree Chandrashekhar, J. - Inspite of service of notice upon the respondents, they have not chosen to appear in the present proceeding. 2. Aggrieved of order dated 03.03.2009 passed in Title Suit No. 46 of 1999 by which further proceeding in the said suit has been stayed till disposal of Partition Suit No. 28 of 1999, the petitioners have approached this Court. 3. Briefly stated, Title Suit No. 46 of 1999 and Partition Suit No. 28 of 1999, both were instituted on the same day, that is, on 25.11.1999. Title Suit No. 46 of 1999 was instituted by Smt. Tejni Devi for a decree of declaration of her title and possession over schedule ''B'' properties. In the said suit, initially there were 9 defendants, one of the defendants was Jiblal Yadav. Partition Suit No. 28 of 1999 was instituted by Basudeo Yadav and Gokhul Yadav. In the partition suit, there were as many as 29 defendants, one of them was Jiblal Yadav. Cause of action for instituting Title Suit No. 46 of 1999 has been disclosed by the plaintiff in paragraph No. 13 and 14 of the plaint, where-under she has averred that the defendants have threatened her to dispossess her from the suit land and harvest the crops grown over the suit property. The plaintiff in Title Suit No. 46 of 1999 has laid a claim over the suit schedule properties by virtue of a registered sale deed dated 12.10.1955 which was executed by Mostt. Sukari in favour of the plaintiff. Whereas, Partition Suit No. 28 of 1999 has been instituted for a preliminary decree of partition claiming ?rd share in Khata No. 1, th share in Khata Nos. 8 and 57, 1/12th share in Khata Nos. 11, 13 and 14, ?th share in Khata No. 34, share in Khata No. 36, ?th share in Khata No. 46, share in Khata No. 25 and 1/12th share in Khata No. 73 in schedule ''B'' lands. 4. The plaintiffs in the partition suit have pleaded that there were no partition by metes and bounds amongst the co-sharers of the suit schedule properties and there was unity of title and possession by the plaintiffs and the defendants. Admittedly, the suit schedule properties in both the suits are not the same. 4. The plaintiffs in the partition suit have pleaded that there were no partition by metes and bounds amongst the co-sharers of the suit schedule properties and there was unity of title and possession by the plaintiffs and the defendants. Admittedly, the suit schedule properties in both the suits are not the same. Parties in both the suits are different and the cause of action for instituting Title Suit No. 46 of 1999 and Partition Suit No. 28 of 1999 is also different. The issue in Title Suit No. 46 of 1999 is, whether the plaintiff has right, title and interest over the schedule ''B'' properties. If the issue involved in Title Suit No. 46 of 1999 or Partition Suit No. 28 of 1999 is decided it would not constitute res-judicata in so far as other suit is concerned. The conditions under Section 10 C.P.C are thus not satisfied. In so far as, applicability of Section 10 C.P.C is concerned, the law is well settled. In a recent judgment in "Apsi Jal and Another v. Khushroo Rustom Dadyburjor" reported in (2013) 4 SCC 333 , three suits for eviction were filed for different cause of action. The third suit was filed during the pendency of first two eviction suits and on an application under Section 10 C.P.C, the trial court stayed the third eviction suit till disposal of first two eviction suits. Setting-aside the judgment of High Court the Hon''ble Supreme Court observed as under, "12. .......... As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of nonuser but for a different period. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of nonuser but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of nonuser in the earlier two suits, but if they establish the ground of nonuser for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case." 5. Viewed thus, the trial Judge has committed serious error in allowing the application under Section 10 C.P.C. Resultantly impugned order dated 03.03.2009 is set-aside. The trial court shall proceed in the matter expeditiously, without granting further adjournments, but for justified reasons, to any of the parties. 6. The writ petition stands allowed.