SAMSUDDIIN ANSARI Vs. ABDUL SHEHARAM QURAISHI

JUDGEMENT

(1.) The petitioners are aggrieved of order dated 19.08.2016 passed in Title Suit No. 46 of 2011 by which their application under Section 10 CPC for staying further proceeding in the Title Suit No. 46 of 2011 has been rejected.

(2.) Mr. Shailendra Kumar Tiwari, the learned counsel for the petitioners submits that parties in Title Suit No. 60 of 2006 and Title Suit No. 46 of 2011 are almost same; plaintiff in Title Suit No. 46 of 2011 is defendant no. 2 in Title Suit No. 60 of 2006, and the suit schedule property in Title Suit No. 60 of 2006 is included in Title Suit No. 46 of 2011 and therefore any decision in Title Suit No. 60 of 2006 would materially affect decision in Title Suit No. 46 of 2011.

(3.) In the first place it needs to be recorded that parties in both the suits are not common; in Title Suit No. 60 of 2006 there are three plaintiffs whereas in Title Suit No. 46 of 2011 the sole plaintiff is Abdul Sheharam Quraishi. This also needs to be indicated that the plaintiff in Title Suit No. 46 of 2011 is not one of the plaintiffs in Title Suit No. 60 of 2006 and the relief sought by the plaintiffs in both the suits is different. Not only that, the defendants in both the suits are also different; in Title Suit No. 60 of 2006 there are as many as seven defendants whereas in Title Suit No. 46 of 2011 six persons have been made defendants. Cause of action for instituting Title Suit No. 60 of 2006 has been shown as a situation arising out of a proceeding under Section 145 Cr.P.C. and withdrawal of the Partition Suit No. 40 of 1999 and in consequence thereof an attempt by the defendants to dispossess the plaintiffs from the suit schedule property. Whereas, specific cause of action for instituting Title Suit No. 46 of 2011 has been shown registration of deed dated 101.1950 and an attempt by the defendants to dispossess the plaintiff. May be the suit schedule property in Title Suit No. 46 of 2011 is included in the suit schedule property of Title Suit No. 60 of 2006, in the above facts, a decision in Title Suit No. 60 of 2006 would not constitute resjudicata to Title Suit No. 46 of 2011.