BANSHIDHAR NAIK Vs. LAXMIPRASAD PATNAIK

JUDGEMENT

(1.) BHUBANESWAR Patnaik has three sons, Laxmiprasad, Bishnuprasad and Debiprasad. The latter two are minors. Laxmiprasad, as plaintiff, filed Title Suit No. 18 of 1963 in the court of the Munsif, Athgarh, (hereinafter referred to as Athgarh suit), for declaration of title and recovery of possession on the allegation that the sale deed dated 21-6-1961 for Rs. 2000/- executed by him in favour of the petitioners who were the defendants in that suit, was without consideration and that passing of consideration being a condition precedent to the passing of title, no title passed under that registered sale deed. The substantial defence taken by the petitioners (as defendants) was that on 216-61 two sale deeds were executed. One was executed by Laxmiprasad for Rs. 2000/- and the other was executed by the two minor sons through their mother guardian Binodini Debi for Rs. 7000/ -. Both the sale deeds were not isolated and independent transactions but constituted one indivisible whole with a consideration of Rs. 9000/ -. The entire transaction was negotiated through and settled by Bhubaneswar, who was the real owner of all the lands. Out of the total consideration of Rs. 9000/ -. Rs. 7000/- was paid in cash and Rs. 2000/- was to be given a remission in favour of the petitioner No. 1, who was a Bhagchasi in respect of all the lands covered by both the sale deeds. Petitioner No. 1 was not to claim his rights under the Orissa Tenants Relief Act, Rs. 7000/-was paid under a receipt. The total consideration was thus paid and title passed under both the sales. It is unnecessary to give the respective cases in the pleadings in further details for the disposal of this revision.

(2.) ON 23-12-1963 the petitioners, as plaintiffs, filed T. S. 155/63 in the court of the Subordinate Judge of Cutlack, (hereinafter referred to as the Cuttack suit)against Bhubaneswar and his three sons as defendants. The averments in the plaint in the Cuttack suit are almost identical with the defence in the Athgarh case. The valuation of the Cuttack Suit is Rs. 9000/- and that of the Athgar suit is Rs. 2000/ -.

(3.) ON 6-2-1964 the petitioners filed an application in the Athgarh suit asking for stay of the suit till the disposal of the Cuttack suit. A copy of the plaint in the cuttack suit was filed as an annexure to the written statement. The grounds taken in the petition for stay was that the decision in the Cuttack suit would constitute res judicata for the Athgarh Suit while that of the Athgarh suit would not constitute res judicata for the Cuttack suit, and that the parties would be unnecessarily harassed if in respect of the identical matter two proceedings are continued in two different Courts. This application was rejected by the learned munsif, Athgarh, on 9-3-64 on the reasoning that he had no power to grant stay of the Athgarh Suit Under Section 10 or Section 151 C. P. C. The Civil Revision has been filed against this order.