RADHE SHYAM AGARWAL Vs. KASHINATH VAISH

JUDGEMENT

(1.) This revision is directed against an interlocutory order passed by the Civil Judge, First Class, Gwalior on June 29, 1959 in Civil Suit No. 20 of 1955 whereby he has refused to stay the suit on the application of the defendant.

(2.) The facts material for this revision are these:-The plaintiffs, Kashinath and Rambabu, brought this suit on January 8, 1955, against the petitioner Radhey Shyam for ejectment from a shop and for arrears of rent on the allegations that the suit shop, situated in the ground floor of a building called "Sweet Cottage," was taken from them by the defendant on June 16, 1954, under a rent note executed by him at Rs. 35/- per month for 11 months that the defendant paid Rs. 30/- on the 26th June Rs. 35/- on the 31st August and again Rs. 35/- on the 6th October 1954; that they were in arrears of rent from the 16th June to the 31st December, 1954; that the defendant started interferring with the plaintiffs' possession in respect of other portions of the house, that when the plaintiffs gave him a notice, he disputed their title and asserted his own; and that a notice of eviction was given by the plaintiffs on the 11th December, determining the tenancy on the 31st December, 1954. This suit was instituted on January 8, 1955, and was numbered as civil original suit No. 20 of 1955. This will hereinafter be called the First Suit.

(3.) Before filing his written statement in the first suit, Radhey Shyam along with his father and brothers filed a separate suit in the Court of the District Judge, Gwalior, for partition of joint Hindu family property alleging that Kashinath, Ram Babu and their sons together with the plaintiffs in that suit were all coparceners of a Hindu co-parcenary. That suit was instituted on March 22, 1955 and will conveniently be called the second suit. In that suit the property in dispute in the first suit was also included.