Mohd. Islam Ahmad Khan vs First Additional District Judge Saharanpur and Others

M. Katju, J.—This writ petition has been filed against impugned order dated 281086, Annexure9 to the writ petition.

Heard learned counsel for the parties.

The facts of the case that the petitioner claims to be the son of Nawab Mohammad Noorul Rahman Khan whereas respondent No. 3 claims to be his daughter who alleged that Nawab Mohd. Noorul Rahman Khan left no son when he died on 26676. The petitioner filed a suit No. 184/254/69 before the Assistant Collector, 1st Class for declaration that he is tenure holder of the land in dispute being the son of Nawab Mohd. Noorul Rahman Khan. Respondent No. 3 Bismilla Begum defendant No. 1 on the said suit contested the suit inter alia alleging that the petitioner is not son of Nawab Mohd. Noorul Rahman Khan, True copy of the plaint is Annexure 1. True copy of written statement of Bismilla Begum is Annexure 2. Two other suit being suit No. 185/2755 and 186/256 were also filed before the same Court for declaration under Section 229B of U.P. Z.A. and L.R. Act. These three suits were consolidated and dismissed by Assistant Collector on 23970. Aggrieved the petitioner filed three revenue appeals which were consolidated and allowed by the learned Addl. Commissioner Meerut on 13773 vide Annexure 3. In this order, the learned Additional Commissioner, Meerut held that the petitioner was son of Nawab Mohd. Noorul Rahman Khan and the case was remanded to the Trial Court for decision afresh on merits on the remaining issues. Against this judgment the respondent No. 3 filed a Second Appeal before the Board of Revenue in which liter alia an objection was raised that Smt. Bismillah Begum has ceased to be an Indian National and that she had become a Pakistani National. True copy of the order of the Central Govt. under Section 9(2) of Citizenship Act 1955, is Annexure 4 to the petition. The case appears to be still pending before the Board or Revenue and against an interim order passed by the Board, a writ petition being writ petition No. 5799 of 1982 has been filed in this Court which is said to be pending. The Board by order dated 2811 78 remitted an issue for decisions by the trial Court as to whether Smt. Bismillah Begum remained an Indian National. Nawab Mohd. Noorul Rahman Khan had taken a certain loan from the State Bank of India and had deposited certain valuable ornaments with the respondent No. 4 as security. It is alleged in para12 of the petition that respondent No. 3 Bismillah Begum applied to the State Bank of India to usurp the said ornaments and wanted to withdraw the same from respondent No. 4 behind the back of the petitioner. When the Bank refused to oblige her she filed original suit No. 227/81 before Munsiff City, Saharanpur, true copy of which is Annexure 5. The Bank filed written statement true copy of which Annexure 5 to this petition. The petitioner filed an application for impleadment under Order 1, Rule 10, C.P.C. read with Section 151, C.P.C. which was allowed on 16882, vide Annexure 7. Thereafter the petitioner filed an application for staying the hearing of suit No. 227 of 1981 till the Disposal of the revenue suits. The trial Court framed issue No. 14 on this point and by order dated 26384 allowed the said application under Section 10, C.P.C. thereafter the Bak filed Civil Revision No. 166 of 1984 which was allowed by impugned order 281086 vide Annexure 9, hence this petition.

A counteraffidavit has been filed by the Bank in which it has been stated that no succession certificate has been filed by Bismillah Begum. Another counteraffidavit has been filed by Bismillah Begum. In paragraph 6 of the same it has been stated that the order of Central Government declaring her a Pakistani National is void and against that order a writ petition No. 6599 has been filed in this Court on the ground that the order was passed without giving her opportunity of hearing. In paragraph 9 it is alleged that the District Judge in Suit No. 113 of 1973 held her to be an Indian citizen. True copy of the said judgment is Annexure 1 to the counteraffidavit.

Section 10. C.P.C. states:

"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limit of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."

In Ram Charan v. State of U.P and others, AIR 1979 All 114, it was held by a Full Bench of this Court (vide paragraph 29) that Section 10, C.P.C. will apply only if all the issues in the two matters are the same i.e. the entire subjectmatter of the two suits are identical.

It may be seen that the first suit being 4o. 184/254 of 1969 was for declaration that the petitioner is a tenureholder being son of Nawab Mohd. Noorul Rahman Khan and it was a suit for declaration under Section 229B of U.P. Zamindari Abolition Act. The dispute in that suit was whether the plaintiff was in fact the son of Nawab Mohd. Noorul Rahman Khan and hence could have inherited his property. As regards suit No. 227 of 1981, a perusal of the plaint in the same which is Annexure 5 to this petition shows that it was a suit for redemption of certain ornaments which had been given as security by Nawab Mohd. Noorul Rahman Khan for obtaining a loan at no point of time did the petitioner got himself impleaded in this suit, and the entire controversy in this suit is different from that in the earlier suit . There is no dispute that Bismillah Begum is the daughter of Nawab Mohd. Noorul Rahman Khan. The question whether the petitioner is his son is only incidentally involved in the second suit. At any even the second suit is wholly different in nature from the first suit.

Hence, in my opinion, Section 10 C.P.C. has no application. Thus, there is no infirmity in the impugned order. The writ petition is dismissed.