(1.) The present petition is filed under Article 227 of the Constitution of India challenging the order dtd. 1/12/2023 passed by II Civil Judge, Senior Division, Khategaon, district Dewas in RCS A.No. 2A/2023 whereby the petitioner's application for stay of subsequent suit filed by respondent Nos.1 to 8 has been dismissed.
(2.) Facts of the case are that present petition is filed by defendant No.3. The respondent NOs.1 to 8/plaintiffs failed a suit for declaration, partition, possession and mesne profits against the petitioner and respondent Nos.9 to 18. It was alleged by respondent Nos.1 to 8 that they have 1/3rd share in 1/2 share of Shankarlal in the lands mentioned in para 5 of the pliant i.e. 12.850 hectares and the name of plaintiff no.1 be mutated in 1/2share ie. 4.286 hectares and on 1/2 share names of plaintiff nos.2 to 8 be mutated and possession of 8. 566 hectares of land be given to the plaintiffs. The defendants filed the written statement and denied the contents of the plaint and contended that in previous suit for partition filed by sisters of plaintiff Babulal and Badriprasad against plaintiffs and Jagannath (predecessor of defendants) it was admitted by plaintiff Babulal and Badriprasad that whosoever look after Shankarlal will get the share of Shankarlal. Deceased Shankarlal was residing with the predecessor of the defendants Jagannath, hence defendants are Bhumiswami of the disputed land and since Shankarlal died in the year 1975 hence the present suit is barred by time. The defendants prayed for dismissal of the suit. The petitioner filed an application under Sec. 10 CPC for setting aside the present suit as the previous suit for partition was already decided and is pending before this Court in Second Appeal. The trial court has considered the said application and upon perusal of both the suits found that disputed property in the previous suit is not the same.
(3.) Learned Senior Counsel for petitioner submits that trial court has erred while saying that subject matter of both the suits are different, infact subject matter of both the suits are same and survey numbers of the disputed property mentioned in the previous suit have been changed and modified.