Patna High Court
Smt. Ahilya Devi And Ors. vs Sachindra Kishore Prasad Singh And Ors. on 28 February, 2008
Equivalent citations: AIR 2008 (NOC) 1257 (PAT.), 2008 (2) AJHAR (NOC) 593 (PAT.) 2009 AIHC (NOC) 93 (PAT.), 2009 AIHC (NOC) 93 (PAT.), 2009 AIHC (NOC) 93 (PAT.) 2008 (2) AJHAR (NOC) 593 (PAT.), 2008 (2) AJHAR (NOC) 593 (PAT.), AIR 2008 (NOC) 1256 (PAT.), 2008 (2) AJHAR (NOC) 592 (PAT.) 2009 AIHC (NOC) 92 (PAT.), 2009 AIHC (NOC) 92 (PAT.), 2009 AIHC (NOC) 92 (PAT.) 2008 (2) AJHAR (NOC) 592 (PAT.), 2008 (2) AJHAR (NOC) 592 (PAT.)
ORDER S.N. Hussain, J.
1. This civil revision has been filed by defendant-petitioner challenging order dated 29.01.2005 by which the learned Subordinate Judge, 6, Samastipur, rejected his petition for stay of Partition Suit No. 166 of 2003 till the disposal of Partition Suit No. 108 of 2003 pending in the court of Subordinate Judge, 6, Samastipur.
2. The aforesaid Partition Suit No. 166 of 2003 was filed by the plaintiffs-Opposite Parties 1st Set for partition of their half share in the suit properties of Samastipur and Patna and also for declaration that the sale deed dated 20.01.2003 executed by defendant No. 1 (original petitioner) in favour of defendant No. 5 was illegal, fraudulent, void, inoperative and not bin ling on the plaintiffs and also for cancelling the same and for other ancillary reliefs. It transpires that defendant No. 1-petitioner appeared in he suit and filed a petition dated 17.12.2004 for stay of proceeding of the aforesaid suit (P.S. No. 166 of 2003) till the disposal of the earlier Partition Suit No. 108 of 2003 claiming that Partition Suit No. 108 of 2003 was filed by him-for partition of the same lands of Samastipur which are involved in the subsequent Partition Suit No. 166 of 2003 and all the parties of the previous Partition Suit No. 108 of 2003 were parties to the subsequent partition suit.
3. However, the learned court below rejected the said petition by the impugned order dated 29.01.2005 on the ground that Partition Suit No. 108 of 2003 was with respect to only Samastipur land, whereas Partition Suit No. 166 of 2003 was with respect to Samastipur as well as Patna lands and that some of the parties in Partition Suit No. 166 of 2003 were n at parties to the earlier Partition Suit No. 108 of 2003 and also that in t le subsequent Partition Suit No. 166 of 2003 a relief for cancellation of sale deed dated 20.01.2003 was involved which issue was not involved in the earlier Partition Suit No. 108 of 2003.
4. From the averments made by the learned Counsel for the parties and the materials on record, it is quit; apparent that all the parties in previous Partition Suit No. 108 of 2003 are parties to the subsequent Partition Suit No. 166 of 2003, whereas some of the parties in the subsequent suit are not parties to the previous suit, but they are none-else than the successors in interest of defendant No. 1 who was already plaintiff in the previous suit.
5. However the difference between the suits is only with respect to the lands involved and the reliefs claimed as in the Partition Suit No. 108 of 2003, relief of partition is sought with respect to Samastipur lands whereas in the subsequent Partition Suit No. 166 of 2003, although the said relief of partition of Samastipur land was sought, but to that a relief of cancellation of sale deed executed by defendant No. 1 in favour of defendant No. 5 with respect to Patna property was also added. From the averments of the parties, it is quite apparent that the genealogy of the family given in both the suits are the same and the main relief in both the suits is for partition of the ancestral properties.
6. So far the relief of cancellation o the sale deed regarding Patna properties sought in subsequent Partition Suit No. 166 of 2003 is concerned, the opposite parties have raised several objections regarding maintainability of the suit and jurisdiction of the court in that regard. These two matters cannot be subject matter of this civil revision, rather they have to be raised and decided by the trial court, if and when raised by the parties. In the said circumstances, this Court is expressing no view in respect thereof.
7. It has been decided by this Court in case of Shri Ram Tiwary and Anr. v. Bholi Devi and Anr. reported in 1993(2) PLJR 570 as follows:
The object of Section 10 of the Code, as noticed, above, is to avoid the conflicting judgments between the courts of concurrent jurisdiction. Section does not require that the matter in issue in both the sums should be same, its only requirement is that the matter in issue in both the suits should be directly and substantially the same. To decide the said question the test to be applied is whether the decision in the former suit will operate as res judicata in the subsequent suit or not. If after looking into the records the court comes to the conclusion that the decision in former suit will operate as res judicata in the subsequent writ or non-suit the plaintiff, then it has to stay the suit. The decision in the case of Shaw Walace and Co. Ltd. v. Bholanath Mandalal Sherawal and Ors. relied by the counsel for the petitioners, in my view, does not support his submission. In the said case it was held:
Unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly and substantially the same in both the suits, that is to say, the decision in one suit must non-suit the other suit before it can be said that the matter in issue in both the suits is directly and substantially the same.
8. It was also considered in the said judgment that a learned Single Judge of that Court considering the aforesaid question in the case of Fulchand Motilal and Anr. v. Manhar Lall Jetha Lall Mehta held as follows:
For determining whether pr not the matter directly and substantially in issue in former as well as subsequent suits is the same, the test to be applied is whether adjudication of the matter directly and substantially arising in the former suit will decide not merely that suit but w 11 also operate as res judicata in subsequent suit between the same parties, and not whether the cause of action or reliefs claimed and/or one of the issues arising in both the suits are the same.
I find myself in respectful agreement with the law laid down in the aforesaid case and the law laid down in the said case is complete answer to the submission advanced on behalf of the petitioners. Even if the cause of action, relief prayed for or some of the issues in former and subsequent suits may differ that will not a ground of non-application of Section 10 of the Code if the court finds that the final decision in the former suit would operate as res judicata in the subsequent suit.
9. Since the genealogy of the parties in both the suits are the same and both the suits are for partition of the ancestral properties, hence if in one suit the question of share of the parties is decided, it would naturally operate as res judicata in the subsequent suit. Thus, even if the entire cause of action, the relief prayed for and some of the issues involved in the two suits are not exactly the same that cannot be a ground of non-application of Section 10 of the Code. Moreover in both the suits the same properties of Samastipur are sought to be partitioned and only in the subsequent Partition Suit No. 166 of 2003 Patna property is also sought to be partitioned in the same manner and for the same shares and thus in the special facts and circumstances of this case, it would be necessary in the ends of justice that both the suits be tried together so that the question of partition of all properties concerned with respect to respective shares of the parties may be decided without causing any contradictions in the judgments of the two suits and without causing any bar of res judicata to any of the suits.
10. In the said circumstances, the impugned order is set aside and this civil revision is disposed of with a direction to the learned court below to make both the suits analogous and try them together.