1 wp4952.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 4952 OF 2011 1. Sow. Sumanbai W/o Raosaheb Bidve, Age : 60 years, Occ : Nil, R/o Shiur, Tq. & Dist. Latur. 2. Sow. Laxmibai W/o Ganpat Korsule, Age : 42 years, Occ : Household, R/o Baranpur, Tq. Ausa, Dist. Latur. ..PETITIONERS -VERSUS- 1. Raosaheb S/o Bajirao Bidve, Age : 75 years, Occ : Agril., R/o Shiur, Tq. & Dist. Latur. 2. Sow. Manda @ Venubai W/o Gorakh Patil, Age : 38 years, Occ : Agril., R/o Jogan Chincholi, Tq. Ausa, Dist. Latur. 3. Sow. Shridevi W/o Umakant Hurdale, Age : 35 years, Occ : Household, R/o Alamala, Tq. Ausa, Dist. Latur. 4. Sow. Vandana W/o Prabhu Aaglave, Age : 30 years, Occ : Household, R/o Naigaon, Tq. Kallam, Dist. Osmanabad. 5. Sow. Ranjana W/o Bhimashankar Lohare, Age : 28 years, Occ : Household, R/o Chincholiraowadi, Tq. & Dist. Latur. ..RESPONDENTS 2 wp4952.11 ...... Shri B.N. Patil, advocate for the petitioners. Shri. S.Y. Patil, advocate for respondent nos. 1 to 4. Shri A.R. Tapse, advocate for respondent no.5. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 5th September, 2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With consent of the parties, this Petition is taken up for final hearing. 2. The present petitioners have filed the Suit bearing Regular Civil Suit No. 445 of 2009 for partition and separate possession. The petitioners also contended that the defendant no.1 has illegally sold the property to the defendant no.5. The original defendant no.1 of the present suit has also filed one Special Civil Suit No. 170 of 2009 for cancellation of sale deed executed by him in favour of the defendant no.5 of the present suit. 3. The defendant no.5 moved an application under Section 10 of the Code of Civil Procedure for stay of the present suit i.e. Regular Civil Suit No. 445 of 2009. The Trial Court allowed the said application. Aggrieved thereby, the plaintiffs filed the present Writ Petition. 3 wp4952.11 4. Shri. B.N. Patil, the learned Counsel for the petitioners submits that the parties in both the suits are different. The reliefs claimed are different. Simply because one issue is appearing common in both the suits, that would not be sufficient to stay the proceedings of the present suit, in as much as, the present suit is a substantive suit for partition and separate possession. The present petitioners are also not parties to the other suit. In such circumstances, the ingredients of Section 10 of the Code of Civil Procedure are not attracted. 5. Shri. Suryawanshi, the learned Counsel for the respondent no.5-original defendant no.5 opposes the Petition and contends that admittedly the Special Civil Suit No. 170 of 2009 is previously instituted suit. The issue involved in Special Civil Suit No. 170 of 2009 is regarding the validity of the sale deed. Similar issue also involved in the Regular Civil Suit no. 445 of 2009. In such circumstances, the decision given in Special Civil Suit in respect of the issue of sale deed would operate as res-judicata in Regular Civil Suit. According to the learned Counsel, even if the present petitioners are not parties to the Special Civil Suit no. 170 of 2009, that would not affect the powers of the Court to stay the suit. Even Section 151 can be resorted to in such 4 wp4952.11 circumstances. 6. With the assistance of the learned Counsel, I have gone through the order. It is evident that the present petitioners are not parties in Special Civil Suit no. 170 of 2009 and as such would not be bound by any order passed in Special Civil Suit no. 170 of 2009. In the present suit, a substantive relief of partition and separate possession is claimed. The said relief is based on the rights of the petitioners to claim share. In view of the above conspectus, Section 10 of the Code of Civil Procedure would not be squarely applicable in the present case. Even the findings given by the Trial Court in the Special Civil Suit would not operate as res- judicata, in as much as, the present petitioners are not the parties. In the circumstances, the Trial Court has committed error while allowing the application Exhibit-29 filed by the respondent no.5. 7. In the result, the Writ Petition is allowed. The impugned order is quashed and set aside and the application Exhibit-29 in Regular Civil Suit No. 445 of 2009 is rejected. 8. At this stage, Shri Suryawanshi the learned counsel for the respondent no.5 submits that both the suits be clubbed together. The respondent no.5 is at liberty to move such 5 wp4952.11 application before the Competent Court. The Court before whom such an application is moved by the respondent no.5 shall consider the same on its own merits. 9. The Rule is accordingly made absolute, however, with no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 4952.11