Jharkhand High Court
Mir Akhtar Hussain & Ors vs Mir Anwar Hussain & Ors on 28 January, 2015
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3724 of 2011
1. Md. Akhtar Hussain
2. Mir Aslam
Both sons of late Mir Amjad
3. Jahanara Parveen, W/O late Mir Abid Hussain and daughter in
law of late Mir Amjad
4. Jaibunnissa, daughter of late Mir Amjad,
All R/O H.B. Road, Tharpakhna, Ranchi at present residing at
Munshi Mahalla, Muslim Basti, Gurudwara Road, Mango,
Jamshedpur, through their agent and constituted attorney Md. Zahid
alias Tipu, S/O Amiruddin Galib, R/O H.B. Road, Ranchi, P.S.
Lalpur, Dist. Ranchi
... Petitioners
Versus
1. Mir Anwar Hussain
2. Mir Afzal Hussain
Both sons of late Mir Ashraf Hussain, R/O Hazaribagh Road,
Tharpakhna, PO PS Lalpur, Dist. Ranchi
... PlaintiffsRespondents
3. Amiruddin @ Galib, S/o Late Mir Ali Hassan
4. Quamar Parvez
5. Zahid Hussain @ Tipu
Both s/o late Amiruddin @ Galib, R/o Ramzan Colony, Near Holy
Cross School, Kanta Toli PO & PS Lalpur, Dist. Ranchi
... DefendantsRespondents
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. A. K. Das, Advocate
For the Respondents :
06/28.01.2015Aggrieved by order dated 16.03.2011 whereby application under Section 10 r/w Section 151 C.P.C filed by defendant nos. 4 to 7 in Title Suit No. 488 of 2009 has been dismissed, the present writ petition has been filed.
2. The brief facts of the case are that, Title Suit No. 399 of 2007 was filed by legal heirs of one Mir Amjad against the legal heirs of late Mir Ashraf Hussain, seeking the following declarations:
2(i) That late Mir Amjad, son of Mir Ali Hussain did not make any gift to Mir Ashraf, son of Late Ali Hussain in respect of land at Thana No. 197 admeasuring 78.75 decimal at Lalpur, Ranchi,
(ii) That there was no gift made by Mir Amjad in favour of Mir Ashraf and thus Mir Ashraf could not have acquired 1/2 share in the Suit Schedule Property and that the plaintiffs and Proforma defendant no. 11 have right, title and interest and possession over 1/3 share in the property described in the Suit Schedule Property,
(iii) That the judgment and decree passed in P.S. No. 244 of 198789 is not binding upon the plaintiffs and proforma defendant,
(iv) That late Mir Ashraf acquired 1/4 share in the property and thus, his legal heirs that is, defendant nos. 1 to 10 inherited 1/3 share in the Suit Schedule Property and,
(v) On adjudication the defendant nos. 1 to 10 be permanently/perpetually restrained from interfering with the possession of 1/3 share of the plaintiffs and proforma defendant no. 11 over the Suit Schedule Property.
3. In Title Suit No. 399 of 2007, the defendants appeared and filed written statement and thereafter, issues were also framed. In the meantime, one Mir Anwar Hussain and Mir Afzal Hussain both son of late Mir Ashraf Hussain filed Title Suit No. 488 of 2009 against respondent nos. 3 to 5 in the present writ petition, seeking a declaration that respondent nos. 3 to 5 have no right and title to hold the Suit Schedule Property by way of encroachment. The Suit Schedule Property is comprised in Plot/SubPlot Nos. 204, 205, 206, 207, 268 and 270 in Thana No. 197, Lalpur, Ranchi, total area 12.20 decimal. The present petitioners filed intervention in T.S. No. 488 of 2009 and they were impleaded as defendant nos. 4 to 7. The petitioners, after filing written statement filed a petition under Section 10 r/w Section 151 C.P.C. seeking stay of further proceeding in Title Suit No. 488 of 2009 till the disposal of the Title Suit No. 399 of 2007. The said application has been dismissed vide order dated 3 16.03.2011 and therefore, the petitioners have approached this Court.
4. Heard the learned counsel appearing for the petitioners and perused the documents on record.
5. Mr. A. K. Das, the learned counsel for the petitioners submits that, plaintiffs and the defendants in Title Suit No. 488 of 2009 are also parties in Title Suit No. 399 of 2007 and the Suit Schedule Property in Title Suit No. 488 of 2009 is included in the Suit Schedule Property in Title Suit No. 399 of 2007 and therefore, if the proceeding in subsequent suit that is, Title Suit No. 488 of 2009 is not stayed and it continues to proceed, the judgment and order passed in Title Suit No. 488 of 2009 may be in conflict with the order passed in Title Suit No. 399 of 2007 and in that event orders passed in both the suits may not be executed. It is thus submitted that, the proceeding in the subsequent suit that is, Title Suit No. 488 of 2009 should have been stayed till the decision in Title Suit No. 399 of 2007 however, the application under Section 10 r/w Section 151 C.P.C. has been erroneously rejected by the learned trial court.
6. 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. Parameshwara" reported in (2005) 2 SCC 256, the Hon'ble Supreme Court has held as under,
8. "............ The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subjectmatter 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 issue" are used in contradistinction to the words "incidentally or collaterally in issue". 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 subjectmatter in both the proceedings is identical."
7. In a recent judgment in "Aspi Jal v. Khushroo Rustom 4 Dadyburjo", reported in (2013) 4 SCC 333, three suits for eviction were filed for different cause of action. The third suit was filed during the pendency of first two eviction suits and on an application under Section 10 C.P.C., the trial court stayed the third eviction suit till disposal of first two eviction suits. Setting aside the judgment of High Court the Hon'ble Supreme Court 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 subjectmatter 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 subjectmatter 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 nonuser 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 nonuser 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 nonuser in the earlier two suits, but if they establish the ground of nonuser 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."
8. The materials brought on record clearly disclose that neither the parties in both the suits are identical nor the subject matter therein are same though, parties in the subsequent suit are also parties amongst many parties in the Title Suit No. 399 of 2007. It may be true that Suit Schedule Property in Title Suit No. 488 of 2009 forms part of the Suit Schedule Property in Title Suit No. 399 of 2007 however, the fact remains that issues in both the suits are entirely different and the reliefs sought are also different. The learned trial court has observed that in Title Suit No. 399 of 2007 the issues relate to a gift and in the subsequent suit the issue relates to encroachment of the suit land.
59. I find no infirmity in the impugned order dated 16.03.2011 and accordingly, the writ petition is dismissed.
(Shree Chandrashekhar, J.) Amit/N.A.F.R