JUDGMENT Tarlok Singh Chauhan, J. - The defendant is the appellant, who aggrieved by the judgments and decrees passed by both the learned Courts below, has preferred the instant appeal. 2. The parties hereinafter shall be referred to as the ''plaintiff'' and ''defendant''. 3. The plaintiff filed a suit for permanent prohibitory injunction on the ground that he is owner in possession of the suit land comprised in Khata/Khatauni No. 25min/26min, Khasra No. 183, measuring 12 biswas, situated in Mauza Surajpur, Pargana Doon, Tehsil Kasauli, District Solan,H.P. along with other defendants and co-sharers (hereinafter to be referred as the suit land). It was alleged that the suit land is unpartitioned and one co-sharer has no right to change the nature of the suit land or to raise any sort of construction over the best portion of the suit land, especially, the land having higher commercial value. It was averred that the defendant has started digging and excavating the suit land and threatened to raise construction and change the nature of the suit land permanently by encroaching upon the best portion of the suit land, hence the suit. 4. The defendant contested the suit by filing written statement wherein preliminary objection was raised that the suit was not maintainable in view of the pendency of Civil Suit No.413/1 of 1991 titled as ''Devi Dayal versus Bihari Lal and others'', which suit had been filed on the same cause and is not maintainable in view of Section 10 of the Code of Civil Procedure. In addition to that, it was further averred that the suit land was in exclusive possession of the defendant since 1911 in terms of the family settlement. Other objections regarding maintainability, valuation and the suit being time barred etc. were taken. On merits, the allegations regarding joint ownership and possession of the suit land were denied. It was averred that the defendant is owner in possession of the suit land as the plaintiff had never been living at village Surajpur. In the family partition which had taken place in the year 1952 and pursuant to such partition, the defendant is in exclusive ownership and possession of the suit land and has also been paying the revenue, whereas, the plaintiff has no right, title or interest in the suit land. In the family partition which had taken place in the year 1952 and pursuant to such partition, the defendant is in exclusive ownership and possession of the suit land and has also been paying the revenue, whereas, the plaintiff has no right, title or interest in the suit land. It was also averred that the plaintiff in the earlier litigation had admitted the ownership and possession of the defendant over the suit land by writing a letter dated 04.02.1969 wherein it was alleged that all the properties except house at Kalka had already been partitioned and desired to get the revenue entries corrected and thereafter an application was moved in the month of May, 1969 by which exclusive ownership and possession of the defendant was reflected in the revenue records. 5. On the pleadings of the parties, the learned trial Court on 06.01.2000 framed the following issues:- "1. Whether the plaintiff is one of the co-owners in possession of the suit land, as alleged?...OPP. 2. Whether the plaintiff is entitled for the decree for permanent injunction as prayed? OPP. 3. Whether the suit of the plaintiff is not maintainable as alleged and is liable to be stayed u/s 10 CPC? OPD. 4. Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 5. Whether the plaintiff is estopped by his own acts, conducts, deeds and acquiescences from filing the present suit, as alleged? OPD. 6. Whether the suit of the plaintiff is barred by limitation, as alleged? OPD. 7. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 8. Whether no cause of action has arisen in favour of the plaintiff, as alleged? OPD. 9. Relief." 6. After recording evidence and evaluating the same, the suit filed by the plaintiff was decreed by the learned trial Court on 07.04.2004 and the appeal filed against the said judgment and decree also came to be dismissed by the learned first appellate Court on 24.08.2005, constraining the defendant to file the instant appeal. 7. OPD. 9. Relief." 6. After recording evidence and evaluating the same, the suit filed by the plaintiff was decreed by the learned trial Court on 07.04.2004 and the appeal filed against the said judgment and decree also came to be dismissed by the learned first appellate Court on 24.08.2005, constraining the defendant to file the instant appeal. 7. On 05.05.2006, the appeal was admitted on the following substantial question of law:- "Whether the suit, out of which the present appeal has arisen, was liable to be stayed under Section 10 on account of the pendency of an earlier suit instituted by the respondentdefendant claiming exclusive ownership and possession of the suit property? 8. Section 10 of the Code reads thus:- "S.10. Stay of suit.- No Court shall proceed with the 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 parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 2 [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 3 [India] established or continued by the 4 [Central Government] and having like jurisdiction, or before 5 [the Supreme Court]. Explanation.-The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action." 9. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue to avoid two parallel trials on the same issue by two Courts and to avoid recording conflicting findings on issue which are directly and substantially in issue in the previously instituted suit. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue to avoid two parallel trials on the same issue by two Courts and to avoid recording conflicting findings on issue which are directly and substantially in issue in the previously instituted suit. The four essential conditions for the application of this Section are as under:- (i) that the matter in issue in the second suit is also directly and substantially is issue in the first suit; (ii) that the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; (iii) that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit; (iv) that the previously instituted suit is pending; (a) in the same Court in which the subsequent suit is brought or (b) in any Court in India, or (c) in any Court beyond the limits of India established or continued by the Central Government or (d) before the Supreme Court. 10. "Matter in issue" does not mean any matter in issue in the suit, but has reference to the entire subject in controversy. One of the tests of applicability of this Section is whether the final decision in the previous suit would operate as res judicata in the subsequent suit. The subject-matter and the cause of action need not be the same. 11. Adverting to the facts of the case, a specific issue vide issue No.3 was framed by the learned trial Court with regard to applicability of Section 10 of CPC and the same was answered against the defendant by observing as under:- "25. During the course of arguments, it is argued by the defendant''s counsel that in some previous suit the matter was same and this suit cannot proceed further. In the present case defendant failed to prove the alleged requirements to stay the suit under section 10 C.P.C. without adducing the documentary record. Moreover, the present suit for permanent prohibitory injunction and it is based on the subsequent cause of action and thus the provisions of section 10 CPC is not applicable in the present facts and circumstances of the case. Thus, this issue is decided against the defendant and in favour of the plaintiff." 12. Moreover, the present suit for permanent prohibitory injunction and it is based on the subsequent cause of action and thus the provisions of section 10 CPC is not applicable in the present facts and circumstances of the case. Thus, this issue is decided against the defendant and in favour of the plaintiff." 12. However, the aforesaid findings in fact have not been assailed before the learned first appellate Court and, therefore, the defendant would normally be precluded from raising the same. However, since this Court has already framed the substantial question of law, it is imperative that this Court answers the same. 13. Learned counsel for the defendant in support of his contention has relied upon a photocopy of the previously instituted suit and would contend that the same was wrongly marked instead of being exhibited by the learned trial Court. He would further contend that even if this submission is not accepted, even then the fact remains that the copy of the previously instituted suit has been placed on record and was required to be taken into consideration for the purpose of deciding the applicability of Section 10 CPC. 14. I have considered the aforesaid submission and find no merit in the same. Admittedly, a photocopy copy of the plaint in case No.413/1 of 1991 titled ''Devi Dayal versus Bihari and others'' was simply placed on record as mark D9 and was not proved in accordance with law. That apart, the present suit is only singularly between the plaintiff and defendant wherein the plaintiff had prayed for the following relief:- "It is, therefore, prayed that a decree for permanent prohibitory injunction restraining the defendant from digging the suit land, raising any type of construction on any portion of the suit land, causing any type of damage to the suit land and changing the nature of the suit land comprised in Khasra No.183, measuring 12 biswas, situated in Mauza Surajpur, Pargana Doon, Tehsil Kasauli, Distt.Solan either by himself or through his agents,servants, assigns, family members whosoever in any manner whatsoever may be passed in favour of the plaintiff and against the defendant with costs. Any other relief which is deemed fit and proper under the facts and circumstances of the case be also awarded to the plaintiff against the defendant." 15. Any other relief which is deemed fit and proper under the facts and circumstances of the case be also awarded to the plaintiff against the defendant." 15. Whereas, in the suit instituted by Devi Dayal, there were as many as 24 defendants including the plaintiff and the prayer made therein is to the effect that the plaintiff is the owner of, (a) various ''abadis'', ''baras'', situated in Surajpur, Tehsil Kasauli, District Solan (b) land at Hemlet Manjhotu (Damonwala), Tehsil Kasauli, District Solan (c) land known as Sasin at Village Damonwala, as detailed in the plaint and does not even remotely touch upon or pertain to the land involved in the present dispute. That apart, even the parties to the suit are not common. 16. In view of the aforesaid discussion, the substantial question of law is answered against the appellant. 17. Consequently, the appeal is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of. 18. Since, the respondent was not represented by any counsel and has appeared in person, therefore, copy of the judgment and decree be sent to him on the following address:- "Shri Krishan Gopal s/o Sh. Ram Krishan, Flat No.136, Pocket No.10, Sector-11, Golden Jubilee Apartments, Rohini, Delhi-110085"