JAYANTA KUMAR MONDAL Vs. BROJO GOPAL DALAL

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India is directed against the Order No.64 dated 28.09.2005 passed by the learned Additional Civil Judge (Jr. Division), Ghatal allowing the application under Section 10 of the Code of Civil Procedure, in Title Suit No. 4 of 2003. The plaintiffs/petitioners filed a suit bearing T. S. No. 6 of 2002 (Renumbered as T. S. No. 4 of 2003) against the defendants/opposite parties in the Court of Civil Judge (Jr. Division), Ghatal, praying for declaration and for injunction in respect of the suit premises. The case of the plaintiffs/ petitioners, in short, is that they have got 27-5/12 decimals of land out of 33 decimals in the "Kha" Schedule property by way of purchase from the heirs of Naba Kumar Dubey. The rest 5-7/12 decimals out of 33 decimals has been purchased by Bibekananda Bayam Samiti. "Ka" Schedule is included in the "Kha" Schedule property. Naba Kumar Dubey was the owner of "Kha" Schedule property under Plot No. 211 measuring 33 decimals. After the death of Naba Kumar Dubey, his legal heirs and representatives are four sons, six daughters and wife. The wife and one daughter died and the rest of the heirs and owners of the "Kha" Schedule property in equal shares. One Partition Suit being T. S. No. 132 of 1991 was filed regarding "Kha" Schedule Property and the said Partition Suit was decreed finally and partition by metes and bounds was held in between the co- shares of the said property. The plaintiffs are the owners and in possession of the "Ka" Schedule property. The shop rooms belong to the "Ka" Schedule property. The defendant No.1 is a tenant under the previous owner and now has become a tenant under the plaintiffs. But, the defendant did not pay the monthly rent to the plaintiffs and, as such, the defendant is a defaulter in payment of rent. On 22.12.2001 the defendant illegally started a new construction after breaking the old wall without any sanctioned plan from the appropriate authority and without the consent of the plaintiffs. Under such circumstances, the petitioners filed an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure for an order of injunctioni over "Ka" Schedule property restraining the defendants by an order of injunction from changing nature and character of the suit property and/or making any construction in the "Ka" Schedule property. The ad-interim order was granted directing the parties to maintain status- quo. The defendant Nos. 1 & 2/O.Ps. contested the suit by filing written statement. The defendant No.2 in her written statement claimed to have purchased 2 decimals of land out of the suit property from Shib Shankar Dubey on 11.09.1995 by a registered deed of sale. On 07.10.2004 the . defendant No.2 filed an application under Section 10 of the C.P.C. praying for stay of all further proceedings of the instant suit until the disposal of O.S.No.8 of 1988 stating, inter alia, that one of the legatees of the will has filed a J. Misc. Case No.41 of 1989 (O.S.No.8 of 1998) before the learned Civil Judge (Jr. Division), Ghatal praying for letters of Administration of that will. That application has subsequently become contentious and at present it is pending before the learned Additional District Judge, 3rd Court, Midnapore being O. S. No.8 of 1998. The plaintiffs have been impleaded in the said case and the defendant has also been added as party therein. The petitioners/plaintiffs contested the said application by filing a written objection. The subject-matter of O.S.No.8 of 1998 and the instant suit are not the same. The matter in issue in both the cases are also not the same and, as such, the stay application filed by the defendant No. 2 is liable to be dismissed. The learned Additional Civil Judge (Jr. Division) Ghatal after hearing the parties has been pleased to allow the application under Sections 10 of the C.P.C. granting stay of all further proceedings of the suit.

(2.) The learned Advocate appearing on behalf of the petitioners submitted that in a probate proceeding the question of title is not involved and the matter in issue in the suit is not directly and substantially the same in probate proceeding being O.S. No. 8 of 1998. It is contended that the suit has been filed praying for a declaration that the defendant has no right to change the nature and character of the suit property. In this connection, the learned Counsel has referred to and cited the decisions reported in AIR 2006 Patna 164 para-7, Chandra Madhav Mishra and Anr. v. Braj Kishore Mishra & Ors., AIR 1985 Calcutta 154 para-5, Adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd. & Anr., AIR 1999 Patna 103 para-11, Smt. Tara Devi v. Smt. Kama/a Gupta & Ors.. AIR 1985 Calcutta 154 paras 6,7, Adhish Chandra Sinha v. Hindusthan Gas & Industries Ltd. & Anr. and 2005 (2) WBLR (Cal) 713 para-17, Ashoke Himmatsinghka v. Rajendra Kumar Himmatsinghka & Ors.

(3.) The learned Advocate appearing on behalf of the defendants/ opposite parties has submitted that in the suit the plaintiffs have claimed that the defendants are tenants under them; that Naba Kumar Dubey was the original owner who executed the will and died leaving four sons. It is further contended that the defendant-purchased 2 decimals of land from one of the sons of Naba Kumar Dubey-one of the legatees of the will. It is contended that the defendants are not the tenants but they purchased the property. It is the further contention of the learned Advocate for the defendants/opposite parties that the question of Title in respect of 2 decimals of land is also the subject-matter of determination of title of the vendors in the Probate Suit. In this connection learned Counsel has referred to and cited the decisions reported in AIR 1978 Delhi 221, C.L. Tandon v. Prem Pal Singh Rawat & Ors., AIR 1972 Calcutta 128, Arun General Industries Ltd. v. Rishabh Manufacturers Private Ltd. & Ors., AIR 1971 Calcutta 345, Life Pharmaceuticals (Private) Ltd. v. Bengal Medical Hall, AIR 1994 Patna 76, Shri Ram Tiwary & Am. v. Bholl Devi & Am. and 2006 (4) ICC..., Ashok Kumar Yadav v. Nobel Designs Pvt. Ltd.