AMARCHAND KUNJILAL SHARMA Vs. KONDU DAGDU PAULKAR

JUDGEMENT

(1.) By this petition, the petitioner impugns the orders passed by the Joint Civil Judge, Senior Division, Washim dated 11.9.2003, rejecting the application filed by the petitioner under section 10 of the Code of Civil Procedure for staying the suit. The respondent Nos. 1 and 2 had filed the Regular Civil Suit No. 60/2002 against the petitioner alleging therein that they had a right to perform pooja and archa in the temple of Devigoddess situated in Field Gat No. 374, measuring 1 hectare 48 r, of village Wanoja. The respondent Nos. 1 and 2 had prayed for a declaration that they being the members of Mang Community, had a right of pooja and archa in the said temple along with other villagers of the village Wanoja. It was pleaded by the respondent Nos. 1 and 2 that the petitioner was restraining the respondent Nos. 1 and 2 from performing their pooja and archa in the said temple.

(2.) Prior to the institution of the Regular Civil Suit No. 60/2002 by the respondent Nos. 1 and 2, the petitioner had instituted a suit against seven defendants and respondent Nos. 1 and 2 were defendants Nos. 4 and 5 in the said suit. The suit filed by the petitioner was registered as Civil Suit No. 133/1997. It was the case of the petitioner in Civil Suit No. 133/1997, that the defendants in that suit including the respondent Nos. 1 and were disturbing the peaceful possession of the petitioner, over the suit field and the Mandir of goddess Devi. The petitioner, had therefore sought a decree of permanent in junction restraining the defendants in Regular Civil Suit No. 133/1997 from disturbing the peaceful possession of the petitioner over the field and the Mandir. It is necessary to note that the civil suit filed by the petitioner was decreed by the judgment dated 29.1.2001. The trial Court had permanently restrained the defendants in Regular Civil Suit No. 133/1997 from disturbing the peaceful possession of the petitioner over the property. However, the defendants, including the respondent Nos. 1 and 2 and all the villagers of the village were allowed to perform pooja and archa in the temple of goddess devi situated in the suit land.

(3.) In view of the decree passed in the previous suit i.e. Regular Civil Suit 1997, the petitioner pleaded that the suit filed by the respondent Nos. 1 and 2 i.e. R.C.S. No. 60/2002 was not maintainable. The petitioner had pleaded that the relief sought by the respondent Nos. 1 and 2 in Regular Civil Suit No. 60/2002 was already granted to the respondent Nos. 1 and 2 and all the villagers by the judgment and decree dated 29.1.2001. According to the petitioner the issues involved in both the suits were common and hence it was necessary to stay the suit filed by the respondent Nos. 1 and 2. The application filed by the petitioner was however, dismissed by the trial Court by the impugned order dated 11.9.2003.