SAHEB RAI @ SAHEB RAY Vs. KAMESHWAR RAI

JUDGEMENT

(1.) The instant civil miscellaneous petition has been filed for setting aside the order dtd. 24/11/2022 passed by learned Sub Judge -I, Saran at Chapra in Title Suit No. 562 of 2020, whereby and whereunder the application dtd. 7/1/2022 filed by the defendant under Sec. 10 of the Code of Civil Procedure (in short 'the Code') with prayer to stay the proceeding in Title Suit No. 562 of 2020 has been rejected.

(2.) Briefly stated, the facts of the case are that the petitioner is defendant of Title Suit No. 562 of 2020 and the respondents are plaintiffs. The respondents have filed a title suit for declaration that in Plot No. 2551 under Khata No. 550, Mauza - Talpuraina, Police Station - Marhowrah, District - Saran, the plaintiff nos. 1 and 2 have got 1/3 share, plaintiff nos. 3 to 11 have 1/3 share and defendant has 1/3 share and in Plot No. 2528 under Khata No. 664 of the same village plaintiff nos. 1 and 3 have got 9 1/3 katha, plaintiff nos. 3 to 11, 9 1/3 katha and 2 1/3 katha of defendant. Further declaration has been sought that judgment and decree dtd. 18/11/2019 and 29/11/2019, respectively passed in Title Suit No. 191 of 2018 were not binding upon the plaintiffs. From the plaint, it appears that one Badri Raut was the common ancestor of the parties who died leaving behind 3 sons Sakhi, Lakhi and Sewak. Defendant is the descendant of Sakhi Raut whereas plaintiffs Kameshwar Rai and Rameshwar Rai were the descendants of Sewak Raut and other plaintiffs are descendants of Lakhi Raut. A partition took place in the three branches in the year 1971 to the tune of 1/3 share and the branches started cultivating their land separately and some of the property jointly. But no partition by metes and bounds took place. As there was no partition of ancestral property by metes and bounds amongst the ancestors, when the defendant Saheb Rai started selling the properties without any partition, plaintiff nos. 1 and 2 brought partition suit before the learned Sub Judge, Saran for partition of the ancestral property vide Title Partition Suit No. 65 of 2006 and the learned trial court decreed the suit in favour of plaintiff nos. 1 and 2. When the land of Khesra Nos. 2528 and 2551 was to be acquired for Marhowrah Diesel Locomotive Factory, the defendant Saheb Rai sought land possession certificate from the Circle Officer but the Circle Officer did not issue any certificate. Thereafter, even the appellate authority did not pass any order in favour of the defendant and observed that the defendant could file a case before the court of competent jurisdiction. Thereafter, defendant Saheb Rai filed a suit for declaration of 8 katha 5 dhur land of Plot No. 1551, Khata No. 599 and Plot No. 2528, Khata No. 664 vide Title Suit No. 367 of 2017. Subsequently, the plaintiffs came to know on 1/10/2020 that the defendant, by using forged papers, received the compensation amount of land acquisition. The plaintiffs also came to know that the defendant without making the plaintiffs party instituted a suit bearing Title Suit No. 191 of 2018 with regard to Plot Nos. 2528 and 2551 and got an ex-parte decree in his favour. Thus, in the light of the aforesaid facts, Title Suit No. 562 of 2020 has been instituted. The defendant appeared in the suit and filed his written statement denying the claim of plaintiffs about joint family acquisition of Plot Nos. 2528 and 2551 and also denying the plea of partition amongst the three branches of Badri Raut in 1971. The defendant took the plea that there was partition amongst 3 sons of Badri Raut in Jyesth of 1940 and all the ancestors/khatiyani property were partitioned in 3 shares. The defendant furnished the details about exclusive right over Plot Nos. 2528 and 2551. The defendant further took the defence that Title Suit No. 191 of 2018 was filed against the State as in the land acquisition proceeding the State was claiming the land as its own. Thereafter, the defendant/petitioner filed a petition on 1/7/2022 under Sec. 10 of the Code stating therein that the subject matter of the dispute as well as prayer in the suit are same/substantially the same as in Title Suit No. 367 of 2017. The defendant/petitioner further claimed that the reliefs are substantially the same involving adjudication of substantially the same issue. Thus, the prayer was made to stay the subsequent suit, i.e., Title Suit No. 562 of 2020, under Sec. 10 of the Code. The plaintiffs/respondents filed rejoinder to the aforesaid petition on 10/2/2022 opposing the prayer for staying of Title Suit No. 565 of 2020. The learned trial court heard the parties and dismissed the petition vide order dtd. 24/11/2022 and the said order is under challenge before this Court.

(3.) Learned counsel for the defendant/petitioner submitted that the impugned order is bad in law and untenable. It is a perverse order passed by a court which has failed to exercise its jurisdiction vested in it. The learned trial court has acted with material illegality in passing the impugned order. There is complete non-application of mind which is apparent from the observation made by learned trial court in the impugned order. The learned trial court has held that suit property and parties of both the suits are the same and title of the parties in both the suits is a core issue, still impugned order has been passed. The learned trial court has further committed error of record by misreading the material available on record for holding that Sec. 10 of the Code is not for staying an earlier suit pending disposal of the subsequent suit because the prayer was made for staying the subsequent suit pending disposal of earlier suit. Learned counsel further submitted that the learned trial court has erred in holding that issues are different and has misconstrued the pleadings to arrive at such a conclusion ignoring the fact that the matter in issue in both the suits are directly and substantially the same. The learned trial court did not apply the touchstone of Sec. 10 of the Code as to whether decree in the earlier suit will be res judicata for the subsequent suit or not. Learned counsel further submitted that the earlier suit was filed by the defendant/petitioner for declaration of his title over the suit land of Plot Nos. 2528 and 2551. The respondents appeared in the suit and filed their written statement wherein they have claimed that all the 3 branches have 1/3 share in the suit property. So bringing another suit seeking partition of the same property and seeking declaration against the judgment and decree of Title Suit No. 191 of 2018 shows the matter in issue in both the suits are substantially the same. Therefore, there was no occasion for the learned trial court to hold that issues involved in both the suits are not the same and it recorded a wrong finding that Sec. 10 of the Code was not applicable. Thus, learned counsel submitted that the impugned order could not be sustained and the same needs to be set aside.