Bakhshish Kaur, J.@mdashThe Petitioner''s prayer to stay the proceedings in Civil Suit No. 265-RT instituted on 13.9.1997/19.3.1997 u/s 10 of
the CPC was declined by the learned Additional Civil Judge (Senior Division), Narnaul. Hence, this civil revision.
2. I have heard Mr. Ajay Jain, learned Counsel for the Petitioners and Mr. Prabodh Mittal, learned Counsel for the Respondents.
3. Jangli Ram, Mahada Ram and others had filed a suit for declaration that they are owners in possession of half share of the land measuring 44
kanals 9 marlas. as per jamabandi for the year 1994-95. The entries in the column of cultivation recorded in the name of the Defendants on the
basis of the mutation is wrong, against law and null and void. It is, therefore, prayed that in place of Defendants, the names of Plaintiff''s be
recorded in the revenue record in the column of cultivation.
4. The suit is resisted by the Defendants, who, inter alia, contended that the matter in dispute is already pending before the High Court, therefore,
proceedings are liable to be stayed. Along with it, an application u/s 10 of the Code was also filed seeking stay of the proceedings.
5. The backdrop of the case, on the basis of which prayer for stay of the proceedings is made, is that Smt. Bhurli, widow of Ghisa Ram, was
owner in possession of property in dispute. She had executed an agreement to sell dated 8.3.1980 in favour of Surjan etc. The agreement
contained a stipulation that possession of the land has been delivered to the prospective vendees i.e. Surjan etc. The vendor, however, has not
executed the sale deed in pursuance of the terms of the agreement. Rather she has sold the suit property in favour of Jangli etc., Plaintiff-
Respondents vide registered sale deed dated January 14. 1987. It also contained a stipulation that possession has been delivered to the vendees.
6. Surjan, Kishore alias Kishori and Ors. the prospective vendees under the agreement dated March 8, 1980 filed Civil Suit No. 173 of 1987,
titled ''Surjan etc. v. Jangli etc.'' for permanent injunction that they be restrained from interfering in their possession as they were in possession of
the suit land by virtue of an agreement to sell, executed by Smt. Bhurli, widow of Ghisa Ram, in their favour.
7. Jangli etc. had resisted the suit and denied the possession as well as ownership of Surjan and others. They had also set up a counter claim with a
prayer that Surjan and others be restrained from interfering in their possession and in the alternative they sought a decree for possession of the
disputed property.
8. The aforesaid suit No. 173 of 1987, re: ''Surjan etc. v. Jangli etc.'' as well as the counter claim were dismissed by the trial court holding thereby
that Surjan etc, were in possession of the suit land as prospective vendees in part performance of the agreement but right conferred u/s 53-A of the
Transfer of Property Act was in the nature of passive equity and it was observed by the trial Court that they could only protect their possession
without conferring upon them any active title. Counterclaim was dismissed on the ground that Surjan etc. were in possession of the suit property,
therefore, they were entitled to protect their possession.
9. Both the parties to the aforesaid suit, aggrieved by the judgment and decree of the trial Court preferred appeals and there too their fate
remained the same, as the first Appellate Court had dismissed both the appeals. However, the Appellate Court came to the conclusion that Surjan
etc. were not in possession of the suit land and they have no right to challenge the rights of the subsequent purchaser i.e. Jangli etc. Thus, Surjan
etc. preferred Regular second Appeal No. 1276 of 1992, which is still pending in this Court and as per order dated June 17, 1992 status-quo
regarding possession was ordered to be maintained. This order was made absolute as per order dated July 24, 1992.
10. The parties to the suit, no doubt, are the same. The property in dispute is also subject matter of both the suits. Still, whether the parties being
same and that they are claiming their ownership qua the suit land, is enough to attract the provisions of Section 10 of the Code of Civil Procedure?
Section 10 of the Code provides as under:
10. 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.
11. A plain reading of Section 10 of the Code would indicate that this Section can be split up into three parts, firstly, the matter in issue is directly
and substantially in issue in a previously instituted suit between the same parties, secondly, previously instituted suit is pending and thirdly, the
previously instituted suit is pending in any of the Courts, as mentioned therein, such Court is a Court of jurisdiction competent to grant relief
claimed in the subsequent suit. It is well settled that the suit within the meaning of this Section includes a tenant''s appeal, as in the case in hand
RSA No. 1276 of 1992 is pending.
12. The object of the section is also clear and implicit, which is to prevent Courts on concurrent jurisdiction from simultaneously trying two
preliminary suits in respect of the same matter in dispute. The suit filed by Surjan etc. had arisen on account of the alleged agreement to sell dated
8.3.1980 executed by Smt. Bhurli in their favour in respect of the land in dispute. Since she had not executed the sale deed in their favour, rather
sold the property in favour in Jangli and Ors. therefore, they filed a suit for permanent injunction that Jangli and others be restrained from interfering
in their possession. It appears that declaration was also sought whereby they had challenged the sale effected in favour of Jangli and others and for
that reason the appeal was dismissed by the first Appellate Court by observing that Surjan etc. were not in possession of the suit land and that they
had no right to challenge the right of subsequent purchaser i.e. Jangli etc.
13. Mr. Ajay Jain learned Counsel for the Petitioners has relied on the case of Sehgal Knitwears v. Shreshth International 2001 (I) RCR (Civil)
373. In that case, the observations made under para 8 of the judgment are to the following effect:
It is, thus, clear that the suit at Ludhiana filed by the Plaintiff is later in point of time vis-a-vis suit filed by the Defendant at Delhi. In both the suits
the matter in issue is directly and substantially the same and the parties are also the same namely M/s. Sehgal Knitwears and M/s. Shreshth
International. Substratum of the relief claimed in the Ludhiana suit will impinge upon the relief claimed in the Delhi suit. Similarly relief claimed in
Delhi suit will impinge upon the relief claimed at Ludhiana suit. In this case, the foundation for the cause of action for M/s. Sehgal Knitwears and
M/s. Shreshth International is substantially the same so far as the substratum of the case of each party is concerned and, therefore, Ludhiana suit
which was filed later in point of time was rightly stayed by the learned trial Court. Finding to be recorded by the Delhi Court in the Delhi suit will
operate as res judicata as far as the substantive/core issues are concerned which will be decisive of the genuineness of the claim of one party or the
other party.
14. Here in the case in hand, the present suit filed by Jangli and others though for declaration is mainly to the effect that the entries recorded in the
name of Surjan and others in the revenue record in the column of cultivation are wrong, against law and null and void. These could not be recorded
on the basis of the mutation No. 2i95 decided on 9.5.1992. In fact, these should have been recorded in the name of the Plaintiffs. It is this part of
the relief which the Plaintiffs in the suit cannot get. In the previous suit No. 173 of 1987 filed by Surjan and Ors. the present Plaintiffs had no doubt
filed the counter claim claiming their possession etc. The reason for filing the present suit can also be gathered from an order passed by a Division
bench of this Court on 20.3.1995 in C.W.P. No. 4162 of 1996 (Jangli and Ors. v. The Financial Commissioner, Haryana, Chandigarh, Surjan and
Ors.). The writ petition was disposed of by observing as under:
The Petitioner has challenged the mutation which neither confers title nor takes away any right. If any cloud has been cast by the Petitioners right,
title or interest, they are at liberty to file a civil suit in accordance with Section 45 of the Land Revenue Act.
No ground to interfere in exercise of writ jurisdiction is made out.
Dismissed.
Sd/- M.S. Liberhan
Sd/- M.L. Singhal
Judges.
20.3.96
On the contrary, Mr. Prabodh Mittal, learned Counsel, for the Respondents contended that revenue entries were changed on 19.5.1992 whereas
Suit No. 173 of 1987 was decreed on 8.4.1992. The order in CWP No. 4162 of 1996 was passed on 20.3.1996. In the counter claim filed by
the Plaintiff-Respondents, they had claimed that in case they are dispossessed then the possession may be restored to them.
15. Mr. Mittal, learned Counsel for the Respondents has also relied on the case of Dr. Devi Ram Sharma v. Ved Singh and Anr. 1986 PLJ 315.
The observations made under para 4 of the judgment are to the following effect:
The order per se is in any case materially irregular. In the previously instituted suit, the matter in issue is whether the Plaintiff Ved Singh in that case
has become owner of 1/4th share of the plot by adverse possession. The matter directly and substantially in issue in the subsequent suit is whether
the property is partible and on what shares. It is on the determination of shares that a mode of partition would have to be evolved to put the parties
in respective possessions of shares allotted to them. In other words, in the later suit first a preliminary decree would require to be passed and then
followed by a final decree. It is obvious that the previously instituted suit and the suit instituted later have nothing in common except that the
property is common and property is not ""matter"" in issue. I see no reason why the two suits cannot simultaneously be allowed to proceed. In case
Ved Singh Petitioner is successful in proving that he has become owner to the extent of 1/4th share of the plot by adverse possession, there and
then the suit of Devi Ram Sharma Petitioner would merit dismissal. But in case Ved Singh fails to establish his becoming owner to that extent by
adverse possession, the necessary sequel would be that the suit of Devi Ram Sharma, the present Petitioner, would get decreed for partition for his
share, to that extent by passing a preliminary decree. Thus, it is my considered view that Section 10 of the CPC was not attracted to the case and
even if it was to some extent by stretching of its language, interest of justice required, on the peculiar facts of this case, that both the suits be
proceeded together upto the stage of the preliminary decree in the later instituted suit.
Thus, where a party is challenging the mutation, which is a separate matter, whether it can be challenged in a civil suit or not, but the fact remains
that the relief which the Petitioners have claimed in the present suit cannot be granted to them in the previous suit, therefore, it cannot be said that
the matter in issue is directly and substantially same in both the cases, therefore, the proceedings are liable to be stayed.
For the aforesaid reasons, I find no ground to interfere with the impugned order. Dismissed.
