BIJEDRA KUMAR Vs. BASANT KUMAR

JUDGEMENT

(1.) This revision is directed against the order dt. 3rd Dec., 1992 passed by the Civil Judge, Meerut deciding issue No. 2 against the defendant applicants and holding that the trial of Suit No. 80 of 1990 is not liable to be stayed under S. 10, C.P.C.

(2.) Briefly stated, the facts of the case so far as relevant for the purposes of the present revision are that Suit No. 947 of 1985 was filed by Smt. Savitri Devi, widow of Ghanshyam Singh against Smt. Santosh Kumari, widow of one Swatantra Kumar and Ved Singh (father of Smt. Santosh Kumari) for permanent injunction restraining the defendants from illegally entering upon the residential premises of the plaintiff situated at 12, Tarapuri, Harihar Khera, Lisari Raod, Meerut and not to take possession of the same directly or through the police without adopting adequate legal recourse. The plaintiff claimed to be the sole owner of the said property. In the written statement Smt. Santosh Kumari, defendant in the said suit, inter alia denied that the plaintiff was the sole owner of the property in question and claimed that the property was joint family property of which her deceased husband Swantantra Kumar was a member. She claimed 1/5th share in the property. A specific issue was framed in the suit to the effect whether the plaintiff was the sole owner in possession of the disputed house and if so to what effect?. The trial court found that the plaintiff, Smt. Savitri Devi, had failed to prove her case regarding sole ownership and consequently dismissed the suit. Savitri Devi filed appeal No. 324 of 1988 before the lower appellate court which was allowed by the XIII Additional District Judge, Meerut by judgment and decree dt. 24-9-1990. The learned Additional District Judge held that the plaintiff, Savitri Devi, was the sole owner, of the disputed house. The defendant, Smt. Santosh Kumari, filed a second appeal being Second Appeal No. 1848 of 1990 before this Court which is still pending.

(3.) In the meantime, the plaintiff opposite party in the present revision, namely Basant Kumar (minor) filed Suit No. 801 of 1990 through his mother and guardian Smt. Santosh Kumari, for partition of the movable and immovable properties claiming 1/5th share in the properties. The said suit was filed alleging that the plaintiff's father namely, Swatantra Kumar, who was the son of the Ghanshyam Singh and was dead, had 1/5th share in the joint family property along with his three brothers namely, Brijendra Kumar, Rajendra Kumar, Jitendra Kumar and their mother, Smt. Savitri Devi, who were arrayed as defendants in the said suit. The defendants of the said suit namely, the present applicants, filed written statement denying the plaint allegations and, inter alia, alleging that the present suit was liable to be stayed under the provisions of S. 10, C.P.C. in view of the decision of the appellate court in appeal No. 324 of 1988 arising out of suit No. 947 of 1985. On the pleadings of the parties, apart from other issues, a specific issue being issue No. 2 was framed by the trial court to the effect whether the present suit No. 801 of 1990 was liable to be stayed under S. 10, C.P.C. This issue was tried as preliminary issue and decided in the negative against the defendants Brijendra Kumar and others. Feeling aggrieved, the said defendants have preferred the present revision before this Court.