SUBHO RAM Vs. DHARMESWAR DAS

JUDGEMENT

(1.) Hansaria, J. sitting singly has referred the following question to Division Bench :

(2.) The question has arisen under the following facts and circumstances. The plaintiff-petitioner instituted Money Suit No. 59/75 against the defendant-opposite party No. 1 and two others for Rs. 3,696/- being the price of 132 maunds of paddy on account of damage for use and occupation of 10 B. 4 K. 16 Laches of plaintiff petitioner's land. Munsiff's court decreed the suit for Rs. 21/- holding that the defendant was a tenant under the plaintiff. The plaintiff preferred therefrom Money Appeal No. 5176 before the Assistant District Judge who allowed the appeal decreeing the suit for Rs. 3,696/-. The defendant therefrom preferred Second Appeal No. 6/78 which was still pending in the High Court.

(3.) The plaintiff-petitioner later on 27-2-78 instituted Title Suit No. 15-78 against the defendants-opposite parties Nos. 1 and 2 in respect of 13 B. 2 K. 2 Ls. of land covered by K.P. Patta No. 41 under Dag Nos. 69, 168, 538. The defendants-opposite parties contested the suit filing a written statement denying the plaintiffs claim and stating that the defendant-opposite party No. 1 had been in occupation for more than 44 years and that the plaintiff-petitioner was never in possession. In T.S. No. 15/78 the defendants opposite parties 1 and 2 filed petition No. 2995/79 under Section 10 of the C.P.C. for staying the suit until the Second Appeal No. 6/78 arising out of M.S. No. 59/74 was finally decided by the High Court. The plaintiff petitioner filed objection thereto but the learned Assistant District Judge in his order dated 29-9-80 held that the parties and the suit land in M.S. No. 59/74 and T.S. No. 15/78 were the same; and that in both the suits the defendants claimed that they have been possessing the land at an annual rent of Rs. 7/-. The M.S. No. 59/74 was decreed for Rs. 21/- being the rent for three years; and, therefore, in the Second Appeal No. 6/78 pending before the High Court, the issue was whether the defendants-opposite parties were or were not tenants under the plaintiff-petitioner, and in both the suits the same question was to be decided; and, therefore, if by invoking S.10, C.P.C. the T.S. No. 15/78 was not stayed and it was decided during the pendency of the Second Appeal No. 6/78, there will be conflicting decisions, and, therefore, the Court invoking S.10, C.P.C. stayed the later suit, namely, T.S. No. 15/78, till the earlier M.S. No. 59/74 was finally decided in Second Appeal No. 6/78 by the High Court.