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2017 DIGILAW 882 (CAL)

Menoka v. Durga Shankar Ghosh

2017-11-16

HARISH TANDON

body2017
JUDGMENT : HARISH TANDON, J. 1. This revisional application is directed against an Order No. 84 dated 5th August, 2016 passed by the learned Civil Judge (Senior Division), Suri, Birbhum in Title Suit No. 29 of 2009 by which an application under Section 10 of the Code of Civil Procedure is rejected. Admittedly, the application under Section 10 of the Code is taken out by the plaintiffs/petitioners at the stage of the evidence of the plaintiffs. By the said application the plaintiffs prayed for a stay of the said Title Suit till the disposal of an application for revocation of probate. 2. The facts which emerged from the record are that the plaintiffs/petitioners filed the said Title Suit No. 29 of 2009 against the defendants/opposite parties for declaration of their title in respect of the properties described in Schedule 'A' and 'B' and for partition and separation of shares. It is alleged in the said plaint that originally the suit properties belong to one Satya Prasanna Ghosh, since deceased. The said deceased married twice during his lifetime and petitioner No. 1 is the second wife and the petitioner No. 2 is a son of the said deceased with the petitioner No. 1 and the proforma defendants are the daughters having born from the said second wife. The defendant Nos. 1 to 6 are the heirs and legal representatives of the said deceased with the first wife. Upon the death of the said owner, the properties devolved upon the parties to the suit. It is further alleged that the trouble started after the death of the said Satya Prasanna Ghosh and due to intervention of the common friends, the defendant Nos. 1 to 3 executed and registered a Deed of Sale in favour of the petitioner No. 1 by divesting their right, title and interest in respect of the property described in Schedule 'A' to the plaint. Subsequently, the said defendant Nos. 1 to 6 sold out the" suit properties to the defendant No. 7 suppressing the earlier execution of the Deed of Sale and the said defendant No. 1 is trying to dispossess the petitioners from the possession of the properties described in Schedule 'A'. 3. It is further alleged in the plaint that all the properties left by the said Satya Prasanna Ghosh are inherited by his heirs jointly and the plaintiff No. 2 has undivided 1/9th share therein. 3. It is further alleged in the plaint that all the properties left by the said Satya Prasanna Ghosh are inherited by his heirs jointly and the plaintiff No. 2 has undivided 1/9th share therein. The aforesaid statements are made in the plaint for the reason that if the factum of the alleged marriage with me plaintiff No. 1 is not accepted yet the plaintiff No. 2 being the son of the deceased is entitled to inherit the said property. 4. The defendant Nos. 1 to 3 are contesting the said suit and denied the status of the plaintiffs/petitioners. According to them, they have no right, title and interest in respect of the aforesaid properties and they have instituted the said suit on the false pre-text to grab the properties left by the said deceased. It is further averred that the said Satya Prasanna Ghosh during his life time, made and published his last Will and testament dated 01.07.1986 and probate has been granted in Miscellaneous Probate Case No. 1989 by the District Delegates, Suri without any objection from any corner. It is admitted in the written statement that the defendant Nos. 1 to 3 sold 47 cents of property to the plaintiff/petitioner No. 1 on consideration. 5. On the above issues the suit was posted for the preemptory hearing and the evidence on the plaintiffs' side commenced. Subsequently, the plaintiffs filed an application for revocation of the probate granted in respect purported Will left by the said Satya Prasanna Ghosh, which is pending. At this stage an application for stay of further proceedings in the partition suit is taken out till the disposal of an application for revocation of probate. 6. The trial Court rejected the said application on three fold grounds: firstly, the factum of the probate having granted in respect of the Will of the deceased was well within the knowledge of the plaintiff No. 1 inasmuch as such facts were duly reflected in the Deed of Sale executed by the defendant Nos. 1 to 3 in favour of the petitioner No. 1 on 18.06.2003; secondly, there has been an apparent delay in filing an application under Section 10 of the Code after such a long time allowing the suit to enter the stage of trial; thirdly, the High Court in CO. 1 to 3 in favour of the petitioner No. 1 on 18.06.2003; secondly, there has been an apparent delay in filing an application under Section 10 of the Code after such a long time allowing the suit to enter the stage of trial; thirdly, the High Court in CO. 2001 of 2015 had directed the trial Court to decide the suit on trial and to complete it within a time frame. 7. The learned Advocate for the petitioner submits that the Court should stay all further proceedings of the partition suit till the disposal of the revocation application as it shall have a direct bearing on the issues. It is further submitted that the trial Court did not consider the scope under Section 10 of the Code in proper perspective. 8. On the other hand, the learned Advocate for the contesting opposite parties submits that the scope of revocation proceeding and the issues involved in the partition suit are different and one shall not have the impact on the other. It is further submitted that the ingredients under Section 10 of the Code are not satisfied and therefore the Court has rightly rejected the said application. 9. On the conspectus of the aforesaid facts and the submission advanced by the respective parties, the moot question which arises in the instant revisional application is whether the trial of the suit for partition should be stayed till the disposal of the revocation application. 10. It is no longer res Integra that the object underlying Section 10 is to prevent the Courts of concurrent jurisdiction to simultaneously trying two parallel proceedings in respect of the same matter in issue in order to avoid the conflicting findings and the decisions on the issues which are directly and substantially an issue in the previous proceeding. It is manifest that the question of suit being barred is not within Section 10 of the Code but only the trial. Broadly speaking there are three essential conditions under the aforesaid provision: firstly, the matter in issue in the second suit should be directly and substantially in issue in the first suit; secondly, the parties in the second suit are same or litigating under the same title; and thirdly, the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit. 11. 11. Apart from the aforesaid broad conditions, the other condition which may be discerned is that the judgments passed in the earlier suit shall operate as res judicata in the subsequent suit. Though the concept of res judicata as evident from Section 11 of the Code may not in stricto sensu apply as the Court in sesin of the first suit has not heard and finally decided the issues which is directly and substantially an issue in the subsequent suit, it is based upon the principles of res sub judice, though not on res judicata in strict sense. 12. As indicated above the Court should not try the later suit during the pendency of an earlier suit if there are the common issue or issues in both the suits in order to avoid the conflicting decisions to operate in the field simultaneously. It is, therefore, a duty of the Court to find out whether the issues in the first suit/proceeding before the Court has direct bearing or impact on the issues in the later suit or proceeding. If the answer is found affirmative, it is mandatory on the Court to stay the trial of the later suit. Where the answer is negative, there is no other option left to the Court to dismiss the application for stay of trial of the later suit. 13. The Probate Court is a Court of conscience having limited jurisdiction on the genuinity and the authenticity of the Will. The Probate Court cannot decide the title of the parties and there is no fetter on the part of the parties to approach the Civil Court for declaration of title irrespective of the fact that the probate has been granted. It is axiomatic to record that the issues in the probate proceeding is not relatable on referable to the title of the parties. The probate proceeding as well as the partition suit stands on a different pedestal and it would be wrong to say that the decision in one shall have impact on the other. Mere involvement of the identical properties in both the proceedings is not the sole factor under Section 10 of the Code. 14. In the instant case the application for probate was granted by the District Delegate, Suri and the plaintiffs have filed an application for revocation, which according to them is pending. Mere involvement of the identical properties in both the proceedings is not the sole factor under Section 10 of the Code. 14. In the instant case the application for probate was granted by the District Delegate, Suri and the plaintiffs have filed an application for revocation, which according to them is pending. Though some of the parties are same, so the subject property, yet the issues framed in both the proceedings are distinct, different and withstand on its independent footing and therefore the ingredients of Section 10 of the Code is not satisfied. 15. This Court, therefore, does not find that the trial Court committed any error in rejecting an application under Section 10 of the Code of Civil Procedure. The revisional application is devoid of merit. The same is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.