KALIPADA BANERJI Vs. CHARUBALA DASEE

JUDGEMENT

(1.) This Rule is directed against an order of the President of the Calcutta Improvement Tribunal, by which he rejected an application of the petitioner, Kalipada Banerji, for stay of hearing of a reference made to him under Section 18, Land Acquisition Act. The principal facts, which led up to this application, were these: On 17 February 1930, the petitioner, Kalipada, instituted a suit in the Court of the Subordinate Judge at Alipore, being Title Suit No. 39 of 1930, for a declaration of title to and recovery of possession of some lands, among which there was a property, item 5(1) with an area of one bigha and seven cottas odd. There were as many as 108 defendants in the suit at that time. Shortly after the institution of this suit, proceedings were taken for acquisition of an area of land measuring 4 bighas and 18 cottas odd and the land was ultimately acquired under the Land Acquisition Act. The opposite party before us, Charubala Dasee, on 8 December 1930, filed her claim to the compensation money before the Land Acquisition Collector as the sole owner of the property acquired and, about ten months later, the petitioner, Kalipada, also filed before the said Collector his claim to the compensation money, claiming it as the owner of the land acquired. On 23 February 1932, the Collector made an award in favour of Charubala and, about a month later, namely, on 24 March 1932, Kalipada applied to the Court at Alipore to have Charubala made a defendant in his Suit No. 39 of 1930 and Charubala was added as a defendant accordingly. On 1 April 1932, at the instance of Kalipada, a reference was made to the President of the Calcutta Improvement Tribunal under Section 18, Land Acquisition Act, for valuation as well as for apportionment and, on 4 April 1932, a similar reference was made under Section 18, Land Acquisition Act, at the instance of Charubala Dasee. On these facts, on 23 November 1932, Kalipada applied to the President of the Calcutta Improvement Tribunal under Section 10, Civil P.C., for stay of hearing of the reference case until the disposal of the civil suit at Alipore and it was the refusal of this application an 16 January 1933, that has given rise to the present Rule.

(2.) I am of opinion that the President of the Improvement Tribunal was right in refusing the application for stay of hearing, though all the grounds on which he passed that order are not, in my opinion, correct. The three essential conditions, that are necessary for bringing in the operation of Section 10, Civil P.C., are: (1) that the matter in issue in the second suit is directly and substantially in issue in the previously instituted suit, (2) that the parties in the two suits are the same, and (3) that the Court, in which the first suit is instituted, is a Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. More than one of those essentials however were wanting in the present matter before us. In the first place, the parties in the two suits were not the same. It is true that both Charubala and Kalipada are parties in both the civil suit and the reference case. But, in the civil suit, there are, as observed before, as many as 108 defendants other than Charubala, who have nothing to do with the reference case, and, in the reference case, the tenants, who had been on the land acquired, are parties, though they were not impleaded in the civil suit at Alipore.

(3.) Then the matters in issue in the second suit are valuation of the land acquired and apportionment of the compensation awarded, not only as between Kalipada and Charubala, but also as between Charubala and the tenants and Kalipada and the tenants. But no relief under either of these two heads could possibly be given by the Court at Alipore. The Alipore Court could not go into the question of valuation, nor could it, on the basis of the plaint as it stands now, give any decree as to the payment of the compensation money. Kalipada's case in the Alipore Court is for a declaration of title to and recovery of possession and not for obtaining any money, being the price of the land acquired. It is significant that, although Kalipada applied for the amendment of his plaint on 14 September 1932, he did not ask for any additional relief for payment of any money to him.