AVTAR SINGH Vs. BALWANT SINGH

JUDGEMENT

(1.) THE present petition arises out of an order of the Sub Judge 1st Class, Fathegarh Sahib dated 20. 9. 1990 by which the application of the respondents under Section 10 of the Code of Civil Procedure for staying of the proceedings in the present suit has been allowed.

(2.) THE facts of the case are that on 25. 2. 1980 Kirpal Singh, the deceased husband of Surjit Kaur suffered a decree for possession in favour of the petitioners and thereafter handed over possession to them. He was thereafter on 16. 5. 1981 murdered by Pal Singh, petitioner, Lachman Singh and Sadhu Singh, father and uncle of the petitioner respectively, and one Badan Singh. On 25. 5. 1981, Surjit Kaur and Harnek Singh filed a suit for declaration that the decree dated 25. 2. 1980 was bad in law and also sought the relief of a decree for permanent injunction. This suit was decreed on 17. 11. 1983 and the order of the trial court was confirmed in appeal by judgment dated 17. 10. 1985. Against the concurrent findings of the fact recorded by the Courts below the defendants have filed R. S. A. No. 124 of 1986 which is yet pending in this court. The findings recorded by courts was that decree dated 25. 2. 1980 was a nullity and the suit was accordingly decreed as prayed. The case further is that sometime in July or August, 1982, Balwant Singh and Natha Singh dispossessed the present petitioner from the suit land which they claimed and had come into their possession on account of the decree dated 25. 2. 1980. Aggrieved by his forcible dispossession, the petitioner filed a suit against Balwant Singh and Natha Singh under Section 6 of the Specific Relief Act seeking an order for the recovery of possession. While the matter was yet pending by sale deeds dated 29. 3. 1985 and 3rd January, 1986, Surjit Kaur aforesaid sold certain portions of the disputed land to respondent No. 3 Harnek Singh who was one of the plaintiff in the earlier suit and to respondent No. 4 i. e. Lok Mata Gurdwara Shahidi Bagh Anandpur Sahib. The suit under Section 6 of the Specific Relief Act was decreed against Balwant Singh and Natha Singh vide order dated November 17, 1986. Aggrieved by this order, the defendants in that suit i. e. Balwant Singh and Natha Singh field an appeal dated 25. 1. 1987 before the Additional District Judge Patiala and while the appeal was yet pending, respondent Nos. 3 and 4 in the present proceedings made an application under Order 1 rule 10 C. P. C. seeking to be made parties as the appeal was allowed and the trial Court was directed to re-decide the matter, after making the applicants parties to the suit. On 7. 5. 1900, the defendants in the present suit made an application under Section 10 of the Civil Procedure praying that as the matter in issue in RSA No. 124 of 1986 and the present proceedings was substantially similar proceedings in the present suit ought to be stayed. This application was allowed vide the impugned order dated 20. 9. 1990 and the proceedings of the present suit were directed to be stayed. Hence this petition by the aggrieved party.

(3.) MR. K. S. Grewal, learned counsel for the petitioner has urged that the nature of controversy in the earlier suit and in the present one was substantially different inasmuch as the first suit pertained to a declaration of title and the present one to recovery of possession by taking recourse to summary proceedings under Section 6 of the Specific Relief Act. He has also urged that the cause of action in the two suit was totally different and as such the application under Section 10, of the Civil Procedure Code should not have been allowed. In support of his plea, Mr. Grewal has relied upon Yar Muhammad and Anr. v. Lakshmi Das and Ors. , A. I. R. 1959 All. 1 and Dr. Devi Ram Sharmaved Singh and Ors. , 2 (1986-1) 89 P. L. R. 627. Mr. A. S. Khera, counsel for the respondent has, however, stated that in the first suit out of which the RSA arises one of the matters in issue is as to whether permanent injunction ought to granted to the plaintiff in that suit. In this connection, it is urged that once it had been found by the two Courts below i. e. Trial Court and Lower Court that the plaintiff in that suit were in actual possession of the property and it was on that account that decree of permanent injunction was granted, the preset suit could not proceed as it was based on the alleged possession of the present petition.