NIRMAL SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) THIS is a revision petition directed against an order of the First Addl. Munsiff Srinagar dated 12 -9 -63 whereby he has stayed the present suit pending in his court under S. 10 of the Civil P. C.

(2.) THE facts that have given rise to the present revision petition are that an application for partition was presented in the office of the Asstt. Commissioner Srinagar on 21st January 1959 by Om Prakash respondent against Sham Singh and Deedar Singh for partition of land under Survey No. 1060K Khewat No. 189, village Nawhatta. The land of which partition was sought measures 2 kanals and 2 marlas. After the appearance of the non -applicants in that application, they put in a written statement. Issues were framed which are on page 24 of the file, but are undated. These issues can be called anything but issues. Anyhow, we are not concerned with that aspect of the case. Later on amended issues were framed which are on page 41 of the revenue file. These issues also do not bear any date. These issues were (1) Whether the applicant in that case had possession over the suit land; (2) Whether the applicant had any right to institute the suit and what sort of title he had over the property in suit; (3) Whether the possession of the defendant had become adverse over the suit property and on what grounds. The fourth issue pertained to the improvements and the fifth was to the effect whether there was a civil suit between the parties with respect to the title of the property and whether the partition proceedings should be stayed.

(3.) IT is stated that in spite of the request of the non -applicants in this case the proceedings in that application were not stayed. Later on a civil suit was filed by S. Nirmal Singh Deedar Singh and: Sham Singh against Om Prakash for declaration and injunction that the plaintiffs were the owners of the suit property which consisted of the entire land under Khasra No. 1060 khewat No. 1180 in village Now -hatta. The relief claimed was that they should be declared to be the owners of this property on account of adverse possession and the defendant should be restrained from interfering with their possession. In para 2 of the plaint the plaintiffs stated that plaintiff No. 1 was adopted by one Om Prakash (not the defendant Om Prakash) and continued to be in possession of the property with the other plaintiff. On 13 -6 -60 nine issues were framed in this case out of which issue No. 4 was with respect to the stay of the proceeding under S. 10, Civil P. C. It appears that after some time after recording the evidence of the parties, the trial Court passed the order under revision staying the suit, on the ground that there was a previously instituted suit between the parties with respect to the very land which was pending before the Asstt. Collector first class Srinagar.