IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 OP(C).No. 2064 of 2011(O) ------------------------- CMA.20/2010 of SUB COURT,NEYYATTINKARA OS.124/2010 of I ADDL.MUNSIFF'S COURT, NEYYATTINKARA .................... PETITIONER: ----------------------- CHRISTUDAS, S/O.THANKAYYAN NADAR, AGED 42 YEARS, KARAKKATTU ROADARIKATHU PUTHAN VEEDU, MAMPAZHAKARA DESOM PERUMPAZHUTHOOR REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HIS WIFE KAMALAMMA. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------------------- KARUNAKARAN NADAR, S/O.NARAYANAN NADAR, AGED 79 YEARS, KUZHIVILA THEKKE PUTHAN VEEDU, PERUMKADAVILA DESOM, PERUMKADAVILA VILLAGE. BY ADV. SRI.K.K.SATHEESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2064/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.1139 OF 2009 OF THE MUNSIFF'S COURT, NEYYATTINKARA. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.1139 OF 2009 OF THE MUNSIFF'S COURT, NEYYATTINKARA. P3: COPY OF THE PLAINT IN O.S.124 OF 2010 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. P4: COPY OF THE ORDER DTD. 19/07/2010 IN I.A.1654 OF 2010 IN O.S.124 OF 2010 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT I, NEYYATTINKARA. P5: COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.20 OF 2010 OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. P6: COPY OF THE JUDGMENT DTD. 6/04/2011 IN CMA NO.20 OF 2010 OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2064 of 2011 ==================================== Dated this the 01st day of August, 2011 J U D G M E N T Petitioner is the first plaintiff in O.S. No.1139 of 2009 of the court of learned Munsiff, Neyyattinkara. Second plaintiff is his wife. That is a suit for declaration of title and possession of 35 cents and a building in old Sy.No.634/1 and R.S. No.6/11 referred to in the plaint schedule. Seventy seven cents of land (of which according to the petitioner, the property in O.S. No.1139 of 2009 forms part) originally belonged to one Karthyayani Ammal who created a mortgage in favour of father of petitioner. Later respondent who is a legal heir of Karthyayani Ammal filed O.S. No.695 of 1991 for redemption of the mortgage and a decree was granted in favour of the respondent. It is stated that in the course of the execution there was a settlement as per which according to the petitioner, 35 cents was to be retained by the petitioner and the remaining portion was to be taken possession of by the respondent pursuant to the decree. Petitioner along with his wife filed O.S. No.1139 of 2009 for reliefs as stated above. Respondent contended that petitioner has no right, title, interest or possession O.P(C) No.2064 of 2011 -: 2 :- over the 35 cents referred in the plaint schedule and in turn filed O.S. No.124 of 2010 for a decree for prohibitory injunction. In that suit plaint A schedule is 77 cents. Plaint B1 to B3 schedules are the buildings where petitioner and others are said to be staying and plaint C schedule is A schedule property, less the buildings described in Plaint B1 to B3 schedules. Respondent claimed to be in possession of the entire 77 cents excluding those buildings. Petitioner filed I.A. No.1654 of 2010 in O.S. No.124 of 2010 to stay that suit under Section 10 of the Code of Civil Procedure. That application was dismissed by the learned Munsiff as per Ext.P4, order which was challenged in C.M.A. No.20 of 2010 in the court of learned Sub Judge, Neyyattinkara. Learned Sub Judge without going to the question whether the CMA is maintainable or not, dismissed the appeal on merits as per Ext.P6. Exhibits P4 and P6 are under challenge. 2. Learned counsel for petitioner relied on the decisions in Mar Themotheus Metropolitan v. GD Mookkan (1981 KLT 10), Vrinda v. Indira Devi (1994 [1] KLT 444), M.S.Balasubramanian v. Sakthivel (1991 [2] ILR Kerala 547) and National Institute of Mental Health & Neuro Sciences v. C. Parameswara ([2005] 2 SCC 256) to contend that exact identity of the subject matter of the suit or O.P(C) No.2064 of 2011 -: 3 :- parties is not required for the court to order stay of suit under Sec.10 of the Code. It is contended by learned counsel that if a decision in the former suit is likely to operate as res judicata in the latter suit, the latter suit is to be stayed under Sec.10 of the Code. It is submitted that the said aspect of the matter was not taken into account. 3. Learned counsel for respondent contended that properties are entirely different and as such stay is not required. It is also contended that in O.S. No.1139 of 2009 prayer is for a declaration and possession while in O.S. No.124 of 2010 prayer is for permanent injunction based on possession of the respondent. In the circumstances stay of the subsequent suit is not required. Learned counsel also pointed out that respondent has filed an application for joint trial of the two suits. 4. Though it may appear from the submissions of learned counsel on both sides that the dispute is concerning the very same property respondent contending that entitlement of petitioner and others is only with respect to the buildings referred as B1 to B3 in the schedule of O.S. No.124 of 2010 and the land appurtenant and petitioner contending that his entitlement is for the entire 35 cents where the building stands it is seen from a perusal of the A schedule in both the suits there is some confusion as to the lie of property. It appears from the plaint O.P(C) No.2064 of 2011 -: 4 :- schedule in O.S. No.1139 of 2009 that the property described therein is 35 cents towards northern portion of the 1.54 acres while in the plaint in O.S. No.124 of 2010 the A schedule is described as 77 cents towards southern portion of 1.54 acres. It appeared to me that descriptions did not tally. It is not clear whether the said description in either or both of the plaint schedule are correct or not. Counsel on both sides were also not able to tell me about the correctness or otherwise of the said description in the plaint schedules. It is also submitted that application for joint trial of the two suits is pending consideration. In the circumstances the proper course is to send back I.A. No.1654 of 2010 in O.S. No.124 of 2010 for fresh decision. Learned Munsiff has also to consider whether there is substantial identity of the properties. Learned Munsiff shall also bear in mind that the prayer in O.S. No.1139 of 2009 is not merely for declaration alone but possession also as if petitioner and second plaintiff in O.S. No.1139 of 2009 are in possession and enjoyment of the property mentioned in the A schedule. Based on the above learned Munsiff shall pass appropriate fresh orders on I.A. No.1654 of 2010. If both the suits are pending in the same court the issue regarding joint trial also be considered. Resultantly, Original Petition is allowed. Exhibits P4 and P6, order and judgment are set aside. I.A. No.1654 of 2010 in O.P(C) No.2064 of 2011 -: 5 :- O.S. No.124 of 2010 is remitted to the court of learned Munsiff-I, Neyyattinkara for fresh decision in the light of the observations made above, if necessary after giving parties opportunity to amend the plaint schedule. THOMAS P. JOSEPH, JUDGE. vsv