BHARAT Vs. COMMISSIONER AZAMGARH DIVISION AZAMGARH

JUDGEMENT

(1.) S. N. Srivastava, J. This writ petition is directed against the order dated 18-12-2001 (Annexure 7 to the writ petition) and also the order dated 29-11-2006 passed by the Revisional Court. By these two orders, it would appear, the application under Section 10 of the C. P. C. for staying the suit under Section 176 of the U. P. Z. A. and L. R. Act was dismissed.

(2.) A brief recapitulation of necessary facts is that the plaintiff Mohini and Hansraji instituted suit for partition of the residential house and Sahan in the Civil Court which was numbered as O. S. No. 294 of 1982. The suit aforesaid culminated in being decreed and the matter is now pending before the High Court in second appeal. It would further appear that Hans Raji Opposite party No. 3 filed another suit under Section 176 of the U. P. Z. A. and L. R. Act before the Sub-Divisional Officer Saghri District Azamgarh for partition of the agricultural property in the year 1982. An application was moved under Section 10 C. P. C. for staying further proceeding in the suit on the ground that the matter is lingering in second appeal arising out of civil suit for partition of the residential house and Sahan. The application ended up in being rejected vide order dated 29-11-2001. A revision preferred against the same was also dismissed vide order dated 18-12-2001.

(3.) IT would crystallize from the above section that requirements of Section 10 of the C. P. C. are : (1) The Court must have jurisdiction to proceed, (2) the matter in issue is also directly or substantially in issue, and (3) the parties are litigating under the same title where such suit is pending in the same or any other Court. Reverting to the facts of the present case, it would appear that the case in hand does not satisfy any of the conditions postulated in Section 10 of the C. P. C. In so far as suit instituted for partition of residential house and Sahan is concerned, it brooks no dispute that it is only the civil Court which is vested with the jurisdiction to adjudicate upon the suit for partition or any other matter and the revenue Court could not entertain any such suit. By this reckoning, there is no difficulty in holding that the subject matter of both the suits are distinct and they are also governed by two different laws. To be precise, the suit for partition arising out of agricultural land is cognizable under the U. P. Z. A. and L. R. Act while the suit for partition relating to partition of residential property and Sahan is cognizable by civil Court and is governed by Hindu Law and Transfer of Property Act and other laws applicable to it. Yet another aspect to be considered is the application of Section 10 C. P. C. One of the factor necessary for application of Section 10 C. P. C. is that both the Courts should have jurisdiction to decide the matter in issue about the property involved in different suits. In the present case, only revenue Court has jurisdiction to entertain the suit for partition under Section 176 of the U. P. Z. A. and L. R. Act and civil Court has no jurisdiction regard being had to Section 331 of the U. P. Z. A. and L. R. Act which excludes the jurisdiction of the civil Courts. The above discussion also lends credence to the view that the subject matter of the two suits are distinct from each other and they are governed by different laws and by this reckoning, Section 10 of the C. P. C. is rendered inapplicable to the present case.