1 WP 1046/2003 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1046 OF 2003 Nanasaheb Dattu Babar .. Petitioner V/s Dattu Arjun Babar since deceased through his legal heirs (1-A) Fulabai Dattu Babar (1-B) Sou. Shalan Anant Aglave (1-C) Sou. Shobha Abhiman Aglave (1-D) Sou. Nanda Arun Shinde 2. Nivrutti Devu Kadam since deceased through his heirs 2A. Parvati Nivruti Kadam 2B. Anil Nivruti Kadam 2C. Mrs. Shela Machindra Malase 2D. Mrs. Manabai Hanumant Mote 2E. Mrs. Latika Ramesh Chavan 2F. Mrs. Balabai Shambhaji Ronge 3. Smt. Chasubai Haridas Mule 4. Smt. Kalavati Shivaji Maske 5. Smt. Latika Maruti Nagave .. Respondents Mr. C.G. Gavnekar for the petitioner. Mr. S.A. Kumbhakoni for respondent nos.2A to 2F. CORAM : D.G. KARNIK, J. DATE : 8TH JUNE 2011 ORAL JUDGMENT: 1. This petition is directed against the order dated 19th July 2 WP 1046/2003 2001 passed by the 2nd Additional District Judge, Solapur, refusing to stay the hearing of the Appeal No. 502 of 1997. 2. Petitioner is a son of Dattu Malku Babar, who was karta of a joint hindu family which owned certain immovable properties. By a sale deed dated 12th April 1971, Dattu Malku sold portion of the joint family properties to the respondent no.1 who in turn sold the same to respondent no.2 under a sale deed dated 16th March 1978. The petitioner thereafter filed a suit bearing Regular Civil Suit No. 188 of 1981 for a declaration that the sale deed executed by his father Dattu Malku was not binding on him as the property was sold sans legal necessity. He also prayed for possession of the property sold. The suit was decreed partly. The trial Court held that the sale deed dated 16th March 1978 executed by his father was void so far as it relates to a part of the land comprised in gat no. 107 and the electric motor therein. Aggrieved by the decision the respondent no.2, who had by then purchased the property, filed an appeal. The petitioner also filed a cross appeal. The appeal filed by the petitioner was dismissed while the appeal filed by the respondent no.2 was partly allowed. The petitioner has filed a further appeal bearing Second Appeal No. 450 of 1997 which is pending in this Court. 3 WP 1046/2003 3. In the meanwhile, the respondent nos.1 and 2 filed a suit, bearing Regular Civil Suit No. 47 of 1989, for general partition of the joint family properties. By a judgment and order dated 15th October 1997, the suit was decreed and the trial Court passed a decree for partition of the joint family properties. The trial Court also directed that the decree be sent to the Collector for effecting a partition as per section 54 of the Code of Civil Procedure. Aggrieved by the decision of partition and declaring that the respondent nos.1 and 2 had 1/3rd share in the properties, the petitioner filed an appeal bearing Civil Appeal No. 502 of 1997 in the District Court. In the said appeal, he made an application that the issues involved in Appeal No. 502 of 1997 were identical with the issues which were involved in Second Appeal No. 450 of 1997 which was pending in the High Court and, therefore, his own appeal bearing Appeal No. 502 of 1997 be stayed. The appellate Court dismissed the application by its order dated 19th July 2001. That order is impugned in this writ petition. 4. The short question that arises for my consideration is whether the issues involved in Appeal No. 502 of 1997 and the issues involved in Second Appeal No. 450 of 1997 pending in the High Court are substantially the same so as to justify the stay of 4 WP 1046/2003 the appeal in the District Court. 5. It may be noted that Appeal No. 502 of 1997 arises out of Civil Suit No. 188 of 1981 filed by the petitioner. The main issue involved in the said suit was whether the sale deed dated 12th March 1971 executed by Dattu Malku (father of the petitioner) was executed for legal necessity and whether it was binding on the share of the petitioner. The petitioner had not claimed that the sale deed was totally void and was not operative even in respect of the share of his father Dattu Malku. The only question was whether the sale deed was binding on the share of the petitioner in the joint family properties held by his father Dattu Malku as a karta of the family. 6. The issue involved in the suit filed by the respondent nos.1 and 2 is what was the share of Dattu Malku, the father of the petitioner, and whether respondent nos.1 and 2 were entitled to partition and separate possession of the share of Dattu Malku which was purchased by them. Thus the issues involved in the two suits were not identical. The petitioner is not challenging the sale deed as a whole. The respondents are claiming partition of the share of Dattu Malku which is not the subject matter of the earlier Suit No. 188 of 1981 filed by the petitioner. 5 WP 1046/2003 Since the issues in the two suits are different, section 10 of the Civil Procedure Code does not apply. The lower appellate Court, therefore, did not commit any error in refusing the stay to the hearing of the appeal. There is no merit in the writ petition which is hereby dismissed. Rule is discharged with no order as to costs. (D.G. KARNIK, J.)