DWARIKA PRASAD Vs. NIRMALA DEVI

JUDGEMENT

(1.) THIS writ petition is filed by the plaintiff under Article 227 of the Constitution of India calling in question the order dated 16.1.2009 passed by Sixth Additional District Judge, Gwalior in Civil Suit No. 12A/08 whereby the learned Judge has allowed the application filed by respondents - defendants No. 1 to 3 filed under section 10 of the Code of Civil Procedure and stayed the suit till disposal of Civil Suit No. 35A/06.

(2.) FACTS of the case, briefly stated, are that the present petitioner plaintiff filed present suit i.e., Civil Suit No. 12A/08 for declaration and injunction praying that the sale deeds dated 28.1.2006 and 6.3.2006 executed by defendants 1 to 3 in favour of defendants 4 to 5 be declared null and void; defendants 4 and 5 be restrained from alienating the property during the pendency of the suit and be restrained from interfering in possession of the plaintiff. During the pendency of this suit, an application is filed by defendants 1 to 3 under section 10 of the CPC stating that another suit i.e. Civil Suit No. 66A/04 is filed by one Rameshwar Dayal Khandelwal which is pending in the Court of Fourth Additional District Judge, Gwalior, hence, the present suit be stayed.

(3.) THUS , in both the suits, the disputed property is the same and there is common issue involved in both the suits that whether the disputed property is joint family property or it is exclusively owned by Dwarika Prasad who is claiming to be the owner on the basis of a "Will" executed in his favour by Gheesalal.