IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1241 of 2008 KAMESHWAR SINGH son of Late Ramdeyal Singh, Resident of Village Belsar Tola Amir Bigha, Police Station Mehandia, District- Jehanabad, at present resident of Village Bhakharua, Police Station Daud Nagar, District – Aurangabad ----------------- Petitioner Versus 1. HASKALI DEVI w/o Madheshwar Singh, Resident of Village Belsar Tola Amir Bigha, Police Station Mehandia, District- Jehanabad at present resident of Village Bhakharua, Police Station Daud Nagar, District- Aurangabad 2. Surendra Singh Son of Madheshwar Singh Resident of Village Belsar Tola Amir Bigha, Police Station Mehandia, District- Jehanaband ------------Opposite parties. ----------- For the Petitioner :- Mr. Dhrub Narayan, Sr. Adv. Mr. Jitendra Prasad Singh, Adv. Mr. Abhishek , Adv. For the Opposite Parties: - Mr. V. Nath, Adv. Mr. Ajay Kumar Singh, Adv. ---------------- 4. 17.12.2008 Heard learned counsel for the parties. The petitioner has filed the Civil Revision application against the order dated 18.7.2008 passed by learned Sub-Judge II, Aurangabad in Title Suit No. 40/2007 by which the petition filed under Section 10 of the Code of Civil Procedure by the defendant-petitioner for stay of the suit has been rejected. The main stand of the learned counsel for the petitioner is that earlier Title Suit No. 11 of 1985 had been filed by the petitioner which was dismissed on 2.4.1993 by the Sub-Judge, Aurangabad against which the petitioner filed Title Appeal No. 7/1993 which was allowed on 10.3.2000. Thereafter the opposite parties filed Second Appeal No. - 2 - 154/2000 which is pending for hearing after admission before this Court. In the meantime, the present Title Suit No. 175/1997 for eviction was filed against the petitioner which was earlier decreed ex-parte. The same was set aside by this Court by order dated 9.8.2007 passed in Civil Revision No. 1249 of 2007. Subsequently, the petitioner filed the application under Section 10 of the Code of Civil Procedure for staying the said eviction suit which has been rejected by the impugned order. Learned counsel for the petitioner submits that the subsequent eviction suit has been filed in order to get over the decree of title suit passed in first appeal. It is submitted that the present case is squarely covered by the provisions of Section 10 of the Code of Civil Procedure since the parties to the two suits are the same or litigating under the same title and the subject matter of the two suits is essentially the same. Learned counsel contends that the validity of the gift deed is involved in both the matters. In support of the aforesaid proposition learned counsel relies upon a decision of the Bombay High Court in the case of Jai Hind Iron Mart Vs. Tulsiram Bhagwandas: AIR 1953 Bombay 117, in para 3 of which it has been laid down as follows:- “………….. Apart from any authority, turning to the section itself, it will be clear that S. 10 does not contemplate an identity of issues between the two suits, nor - 3 - does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, the purpose effect must be given to the language used by the Legislature in S. 10 that the identity required is a substantial identity. It is true, as the authorities have laid down, that there must be an identity of the subject-matter, it is equally true that the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same.” Learned counsel further relies upon a decision of a learned single Judge of this Court in the case of Sri Raj Kumar Prasad vs. Smt. Kaushilya Devi: 1997(2) PLJR 649, in which relying upon the decision of the Bombay High Court in Jai Hind Iron Mart (supra) it was held in para 8, 9 and 10 of the said judgment as follows:- 8. “In the present case, one of the issues suggested by the defendant and accepted by the Court, as contained in Annexure- 3, reads, as follows: Issue No. 8: “Whether the suit house belonged exclusively to Basant Sao as his self acquired property or it is a joint family property” 9. “ From the aforesaid fact, it is clear that though the present suit has been preferred by plaintiff as an eviction suit, one of the issue (Issue No. 8) is same and similar to - 4 - the issue has to be decided by this Court in First Appeal Nos. 793/94 and 10/95, which are pending before this Court. Admittedly, the suit property of the present eviction suit and the first appeals are common and parties of the present eviction suit are also parties in the first appeals aforesaid. It is further evident that the claim of the plaintiff made in her plaint filed in Eviction Suit No. 9/92 is based on decision given in Title Suit No. 27/88 and the deed of gift dated 2nd June, 1988. 10. “ Accordingly, I hold that the Court below erred in coming to the conclusion that there was no common issue involved in the present suit and the first appeals aforesaid pending before this Court.” Learned counsel for the respondents on the other hand submits that the Court below has rightly rejected the petition under Section 10 of the Code of Civil Procedure for the reasons that the parties in earlier partition suit and the present eviction suit are not the same since the plaintiff no. 2 - opposite party no. 2 was not one of the parties to the earlier title partition suit. It is stated that the opposite party no. 2 claimed independent title on the basis of the registered sale deed of 1975 with respect to1 katha 13 dhurs of land. Further, in partition suit 5 Kathas 14 Dhurs and 12 Dhurkis of land are admittedly involved whereas in the eviction suit the claim relates to 6 Kathas 17 Dhurs and 12 Dhurkis of land along with the structure and courtyard existing thereon. It is thus argued that neither the parties to the two suits nor the subject matter of - 5 - the two suits are the same. It is further argued that an eviction suit stands on entirely different footing than a suit for partition and normally the subject matter of the two suits will not be the same. In an eviction suit the basic issue to be decided by the Court would be as to whether there exists relationship of landlord and tenant between the parties and further whether any of the grounds for eviction, as provided under the provisions of Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, exists. Learned counsel also contends that the statement that the eviction suit has been filed to get over the decree of title suit in first appeal is contrary to the reality since the eviction suit itself was filed in the year 1997 whereas admittedly the Title Appeal No. 7 of 1993, 6/1998 was allowed on 10.3.2000, much after the filing of the eviction suit, and at that particular stage it was the petitioner no. 1 who had a subsisting decree in his favour. In support of the said stand learned counsel for the respondents relies upon a decision of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara: 2005(2) SCC 256, para 8 of which is quoted below :- “The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of - 6 - conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. 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 subject- matter 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 subject-matter in both the proceedings is identical.” He also relies upon a decision of this Court in the case of Dr. N.P. Tripathi vs. Smt. Dayamanti Devi :1987 PLJR 724, in para 4 of which it has been held as follows :- “It is now contended and it has been debated at the Bar by learned Counsel for the petitioner that the matter in the earlier suit is directly and substantially in issue in the subsequent eviction suit and, therefore, the court below has committed an error of - 7 - jurisdiction in saying that Section 10 was not applicable. It was contended that the question for determination in the present suit, namely, the eviction suit which is a subsequent one is with regard to the establishment of relationship of landlord and tenant between the parties which has a direct and substantial bearing upon the question involved in the earlier suit for specific performance of contract. I do not see any force in this contention. That is for a simple and obvious reason. So far as the suit for specific performance of contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale.” The S.L.P. against the said Division Bench decision was dismissed by the Supreme Court, as reported in 1987 PLJR (SC) 53. On a consideration of the rival submissions, I do not find any force in the submissions of learned counsel for the petitioner and sufficient force in that of learned counsel for the opposite parties. It is even prima facie evident that the parties to the earlier partition suit and the present eviction suit are not the same, nor it can be said that Surendra Singh, who is the plaintiff no. 2 in the eviction suit, is claiming under any of the parties to the previous title suit nor is he litigating under the same title. It is evident from the sale deed of 1975 that the - 8 - claim of plaintiff-opposite party Surendra Singh is placed upon his independent title and not that of others who were parties to the earlier title partition suit. Moreover, as has rightly been pointed out by learned counsel for the opposite parties, the subject matter of the two suits is also not precisely the same. It has also been laid down in several decisions of this Court and the Apex Court that so far as eviction suit is concerned, the same only involves the question of relationship of landlord and tenant and the existence of any of the ground on which the eviction can be ordered. It has little to do with the actual title of the parties. Thus the matters substantially in issue in an eviction suit would normally not be those substantially in issue in a suit for title. In the present matter, on account of the fact that the plaintiff no. 2 claims independent title on the basis of a pre-existing sale deed, the emphasis by learned counsel for the petitioner upon the centrality of the issue regarding the validity of the gift deed on the final decision in the eviction suit does not appear to be correct, at least so far as plaintiff-opposite party no. 2 is concerned. In view of the aforesaid reasons, this Court does not find any merit in the revision application and it is, accordingly, dismissed. P. Kumar (Ramesh Kumar Datta, J.)