Sri Rajeshwari Prasad Singh vs Pravesh Kumar Singh, Ram Pravesh Singh

The petitioners are aggrieved of order dated 22.03.2005 passed in Partition Suit No.80 of 2004 by which their application under section 10 CPC for

staying further proceeding in the partition suit has been declined.

This writ petition was initially filed by Rajeshwari Prasad Singh-petitioner no.1 and Surendra Prasad Singh-petitioner no.2, however, on death of the

petitioner no.1 his legal heir, who was arrayed as respondent no.14, has been made a co-petitioner; I.A. No.5405 of 2017 for his transposition as co-

petitioner has been allowed by order dated 23.08.2017.

The substituted petitioner no.1 is represented through Mr. Binod Singh, the learned counsel and the petitioner no.2 is represented by Mr. Ram

Subhag Singh, the learned counsel.

Few interlocutory applications have been filed by the parties, one being I.A. No.4636 of 2018 by the respondents and another is I.A. No.6455 of

2018 filed by the petitioner no.2, both alleging willful violation of undertaking given by the substituted petitioner no.1 which is recorded in order dated

19.07.2017.

Title Suit No.100 of 2002 was instituted by Smt. Pratibha Singh, Smt. Parimita Singh and Smt. Anita Singh for a decree for declaration of their right,

title and interest over the suit lands which are raiyati lands and for a declaration that the defendant-Surendra Prasad Singh has no right, title or interest

over the suit lands. Partition Suit No.80 of 2004 has been instituted by Birendra Prasad Singh @ Birendra Singh and 12 others for a preliminary decree

for partition to the extent of 4 annas share for the plaintiff nos.1 to 9 and Kaushalaya Devi and 4 annas share for plaintiff nos.10 to 13 in schedule 'B'

land and for a declaration that their right, title and interest have not been affected by gift-deed dated 17.04.1963.

Contention raised on behalf of the petitioners is that one of the issues involved in both the suits is validity of the gift-deed dated 17.04.1963 and

while so, a decision in Title Suit No.100 of 2002 would materially affect the decision in Partition Suit No.80 of 2004. Mr. Binod Singh, the learned

counsel for the petitioner no.1 contends that a decision on validity of gift-deed dated 17.04.1963 rendered in Title Suit No.100 of 2002 would constitute

res judicata to Partition Suit No.80 of 2004. To advance this submission, the learned counsel has referred to a decision in “Ram Tiwary Vs. Bholi

Deviâ€​ reported in 1994 (2) PLJR 750.

Section 10 CPC reads as under:

“Stay of Suit-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 limits of [India]

established or continued by [the Central Government and having like jurisdiction, or before [the Supreme Court].â€​

In so far as applicability of Section 10 C.P.C. is concerned, the law is well-settled. In “National Institute of Mental Health & Neuro Sciences

Vs. C. Parameshwaraâ€​ reported in (2005) 2 SCC 256, the Hon'ble Supreme Court has held as under,

“…......... The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate

as resjudicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key

words in Section 10 are “the matter in issue is directly and substantially in issue†in the previous instituted suit. The words “directly and

substantially in issueâ€​ are used in contradistinction to the words “incidentally or collaterally in issueâ€​. Therefore, Section

10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the

proceedings is identical.â€​

The object behind section 10 CPC is that two courts of concurrent jurisdiction should not render conflicting judgments.

In “Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor†reported in (2013) 4 SCC 333, three suits for eviction were filed for different

cause of actions; the third suit was filed during pendency of the first two eviction suits. When on an application under section 10 CPC the trial court

stayed further proceeding in the third eviction suit till disposal of the first two eviction suits and the High Court dismissed the writ petition, the Supreme

Court has observed as under: “12. ……… As in the present case, many of the matters in issue are common, including the issue as to whether the

plaintiffs are entitled to recovery of possession of the suit premises, but for application of section 10 of the Code, the entire subject-matter of the two

suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-

matter in controversy is same.

In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on

the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user

but for a different period. Though the ground of eviction in the two suits was similar; the same were based on different causes. The plaintiffs may or

may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior

to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of section 10 of the Code is not

attracted in the facts and circumstances of the case.

It is not the only requirement in law that both the suits must be between the same parties or between the parties under whom they are litigating, it

must be found that the issue involved in the suit is also directly and substantially in issue in a previously instituted suit. The test is whether the decision

in the former suit will operate as res judicata to the subsequent suit. In Title Suit No.100 of 2002 there are three plaintiffs and the sole respondent-

Surendra Prasad Singh whereas in Partition Suit No.80 of 2004 there are as many as 13 plaintiffs and 26 defendants. Evidently, parties in both the

suits are not common, may be one is common. Title Suit No.100 of 2002 has been instituted for a declaration that the suit schedule land is raiyati land

and for a declaration of the plaintiffs' right, title and interest over the suit lands whereas Partition Suit No.80 of 2004 has been instituted for a

preliminary decree for partition. Suit schedule properties in both the suits are also different; may be the lands comprised under the gift-deed dated

17.04.1963 itself forms part of the suit schedule properties in Partition Suit No.80 of 2004.

Cause of action for instituting Title Suit No.100 of 2002 is the mutation proceedings particularly the revisional order by which the plaintiffs have been

directed to get their right, title and interest over the lands in question declared through civil court whereas cause of action for instituting the partition

suit has been disclosed by the plaintiffs as refusal of the defendants for amicable partition of the joint family property. None of the conditions

enumerated under section 10 CPC, thus, are found present in the present case. A decision on the validity of the gift-deed dated 17.04.1963 is an issue

in the partition suit, however, there is no relief sought in respect of validity of the said gift-deed in Title Suit No.100 of 2002. From the aforesaid facts it

thus becomes apparent that if both the suits proceed the situation contemplated under section 11 CPC would not arise. Evidently, any decision on

validity of the gift-deed dated 17.04.1963 would not constitute res judicata to Title Suit No.100 of 2004.

Viewed thus, and for the reasons indicated hereinabove, challenge to the impugned order dated 22.03.2005 fails and accordingly the writ petition is

dismissed.

Insofar as I.A. Nos.4636 of 2018 and 6455 of 2018 are concerned, suffice would be to indicate that any transfer made during the pendency of

partition suit shall be governed by the principles of lis-pendence, and the undertaking given by the substituted petitioner which is recorded in order

dated 19.07.2017. With the aforesaid observations, both these applications stand disposed of. The trial court shall pass appropriate order when need

arises.