1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 6248 OF 2009 Nahid Anjum W/o Mazherullah Hashmi and another. ... PETITIONER VERSUS Balaji s/o Kshirsagar Shinde and another. ...RESPONDENTS *** Mr. Rajendra Deshmukh, Advocate for the Petitioners. Mr. M. P. Kale, Advocate for the Respondent No.1. Respondent No.2 served – Absent. *** CORAM: S. B. DESHMUKH J. DATED:- 6th JANUARY, 2010. ORAL ORDER: 1. Heard learned counsel for the respective parties. 2. This petition takes an exception to the judgment and order passed by the learned Civil Judge, Junior Division, Ausa below Exhibit-86 in Regular Civil 2 Suit No.254 of 1999 dated 17th July, 2009. 3. Since application under section 10 of the Code of Civil Procedure, filed by the present Petitioner has been rejected by the trial Court, in brief, reference to two suits necessitates. Copies of both the suits are produced on record. It is not in dispute that both the suits are pending in the Court of learned Civil Judge, Junior Division, Ausa, district Latur. I shall referr the first suit in point of time. It is Regular Civil Suit No.374 of 1988. Copy of the plaint is on record Exhibit-B (page 32). From the cause title of this suit it appears that this suit was filed by Mr. Syed Mazharullha Hashami S/o Syed Khairatali Hashmi and another. It seems that original plaintiff Shed Mazharullha Hashami died and legal heirs have been brought on record. In Regular Civil 3 Suit No.374 of 1988 defendant No.1 is Mr. Yehsanullha S/o Babamiya Khadri and some other defendants are parties to the suit. We are concerned with defendant No.1 Yehsanullha. It is relevant to notice the description of property in this suit R.C.S. No.374 of 1988. Landed property Survey No.166, admeasuring 30 Acres and 22 Gunthas, assessed at Rs.26, situate at village Ausa, district Latur alongwith its boundaries is mentioned as suit property in Regular Civil Suit No. 374 of 1988. 4. The plaintiffs in Regular Civil Suit No.374 of 1988 have sought following reliefs in the suit: That, the suit of the plaintiffs may kindly be decreed as under: 1) Plaintiffs claim a declaration that, they are owner and possessor of land Sy.No.166 adm. 30 A. 20 Gts. 4 Asstt. Rs.21-42 Ps. Situated at village Ausa out of it 14 Acres land which are in 3 pieces. First piece is to the east of P.W.D. Road and second piece is north of approach road and third piece is south of approach road combined bounded of it are as under: East: Mohmad Husen S/o Maheboob Bagwan’s land. West: Bande Nawaz Kazi’s land which is sold to Society P.W.D. Road. South: Narayan Vithoba Surwase and Narayan Gir’s land. North: Abdul Rahman Momin’s land and Amirbee’s land. Now which is possession of defendant No.3 and Zaibunisa Begum situated at Ausa. 2. Plaintiffs claim a perpetual injunction restraining defendants and amended defendant No.4 to 25 and agents not to obstruct into plaintiffs possession over suit land whose description is given in para No.1 of relief clause 5 of this plaint. 2/A) Alternatively plaintiffs submits that, if the defendants plead and proved the dispossession of the plaintiffs from the suit portion on the basis of illegal and void sale deed in such a case portion Adm. 1 Acres facing towards north of the approach road and adjoining to the defendants land out of Sy. No.166 of Ausa Tq. Ausa may kindly be restored to the plaintiffs by evicting the defendants from suit portion. 2/B) That, mandatory injunction be issued against the defendants No.4 to 25 and defendant No.26 for demolishing the illegal construction if they effected during the pendency of the suit by the defendants and handover the possession of the land as per law. 3. Cost of the suit be awarded. 4. Any other suitable relief 6 to which plaintiffs are entitled may also be awarded.” 5. A look to the reliefs, makes it clear that the principal prayer is declaration of ownership and possession of land Survey No.166 is sought. Perpetual injunction restraining the defendants therein is also sought by the plaintiff. Alongwith these two reliefs, an alternate relief that if the defendants plead and prove the dispossession of the plaintiffs from the suit portion on the basis of illegal and void sale deed, in case portion admeasuring 1 Acres facing towards North of the approach road and adjoining to the defendant land out of Survey No.166 of Ausa, restoration thereof by evicting the defendants is also claimed or sought by the plaintiffs. Plaintiffs have further prayed for mandatory injunction 7 as it seems from prayer clause 2/B. 6. It appears that Regular Civil Suit No.254 of 199, a subsequent suit, is filed by the Respondent No.1 of this writ petition. 7. I have noticed that Yehsanullha is Respondent No.2 in this writ petition, served, however, none appears for him. Copy of Regular Civil Suit No.254 of 1999, indisputedly a subsequent suit, is on record Annexure-A, page 14. In this suit, one Mr. Balaji (who is Respondent No.1 in this writ petition) is shown as plaintiff. This copy further shows that Sau. Nahid Anjum W/o Mazharullah Hashami is defendant No.1 and there are other defendants also. We are concerned with defendant No.3 in this Regular Civil Suit No.254 of 1999, whose name is mentioned as Yehsanullha S/o Hasan Khadri. This Yehsanullha Hasan Khadri is Respondent No.2 in this writ petition 8 and more specifically is defendant No.1 in earlier suit Regular Civil Suit No. 374 of 1988. In Regular Civil Suit No. 254 of 1999 i.e. The suit filed by the present Respondent No.1, para 1, it appears that land Survey No.166 situate at village Ausa, district Latur is abutting to Latur-Omerga State Highway and more specifically to the western side. Description of the suit property given in the suit further makes it clear that according to the plaintiff there, in that suit, defendant No.3 (Mr. Yehsanullha) is owner of plot NO.E-7. A statement further is made by the plaintiff in that suit, para 2, that on 30th December, 1992, one Syed Sultana D/o Azgar Husain Hashami resident of Hyderabad had purchased this property plot No.E-7 from defendant No.3 in that suit, meaning thereby from defendant No. 3 Mr. Yehsanullha. Further it has been 9 pleaded by the plaintiff Mr. Balaji that said plot has been purchased by him and possession is also received by him. Description of that property is given in para 1 of the suit. It appears that plot admeasures 50’ [East-West] x 50’ [South-North]. Specific boundaries also have been given in this plaint by the plaintiff Mr. Balaji. Pleading raised in this suit para 4 and 5 is also pointed out to me, which I have considered. In para 5, reference is made to a decree passed by the Civil Court in Regular Civil Sui9t No.84 of 1988. 8. I have noticed the names of the parties to this suit, description of the property. Now I would advert to the reliefs prayed by the plaintiff Mr. Balaji, in this suit. It appears from para 10 of the plaint, that plaintiff Mr. Balaji is seeking decree of 10 declaration that plaintiff Balaji is owner and possessor of plot No.E-7, Municipal No.2699 which is part and parcel of survey No.166 area 4 Acres 25 Gunthas and more specifically from Southern side, 1 Acre land thereof. Perpetual injunction seems to be anciliary prayer or decree sought by plaintiff Mr. Balaj. 9. I have referred to minute details of pleadings of the parties to the suit, description of properties and reliefs claimed by the plaintiffs in both the suits. 10. I have heard learned counsel for the respective parties. I have also considered the order by the learned trial Court. Section 10 of the Civil Procedure Code provides stay of the suit. The civil Court, in fact, is prohibited to proceed with the trial of any suit in which the matter in issue is 11 also directly or substantially in issue in previously instituted suit between the same parties or between the 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 having jurisdiction to grant the relief claimed. 11. Regular Civil Suit No.374 of 1988, in the case on hand, can be said to be the previously instituted suit. It is not necessary even to find out date of filing of this suit since the suit was registered by the Civil Court in the year 1988. In that suit Mr. Yehsanullha is the defendant No.1. In that suit, plaintiffs are seeking relief of declaration of ownership. The copy of the written statement filed by Mr. Yehsanullha in Regular Civil Suit No.374 of 1988 is on record Annexure-B, (page 54). Issues framed there in that suit 12 have been also placed on record (page 80). Issue No.3 reads "Do plaintiffs prve that, Amirbi W/o Imamoddin had orally gifted 14 Acres land facing to East of P.W.D. road, and on North-South of approach road on Gudi Padwa 1968?". Issue No.4 in that suit is also relevant which reads "Do plaintiffs prove that Shafiouddin S/o Hashmali became the owner of 14 Acre land out of land Sy. No.166 of Ausa?" Issue No.6 pertains to defendant No.3 i.e. Yehsanullha. It reads "Do plaintiffs prove that Amirbi was the owner and possessor remaining area of 13 Acres 14 Gunthas out of Sy. No.166 after excluding an area of 3 Acres 10 Gunthas and an area of 14 Acres?". In view of the pleading raised by defendant No.3 Yehsanullha, in that suit, issue No.7 seems to have been framed somewhere in the year 1997 and it reads "Do defendants prove that the 13 Deft. No.3 was the owner and possessor of 7 Acres 25 Gunthas out of land Sy. No.166 of Ausa on the Western side of State high way?". 12. Issues framed in Regular Civil Suit No.254 of 1999 also have been placed on record, at page 79. The issue No.1 casts burden upon the plaintiff Mr. Balaji to prove that he is owner in possession of the suit property. Issue No.3, in that suit, seems to be in relation to sale deed dated 30th December, 1992 probably in favour of defendant No.1 and 2, in that suit. These issues seems to have been framed on 16th January, 2008. 13. It is true that Respondent No.1 Balaji himself is not party to Regular Civil Suit No.374 of 1988 i.e. the earlier filed and pending suit in the civil Court. But, then, it is significant to notice that Ehsanullha 14 Babamiya Khadri is defendant No.1 in that suit. From the pleadings, which I have referred to above, made by the plaintiff Mr. Balaji, in his suit Regular Civil No.254 of 1999, it is clear that property was once upon a time owned by this Yehsanullha and in due course of time has changed hands. On the date of filing of Regular Civil Suit No.254 of 1999 plaintiff claims to have acquired title and possession of the suit property of that suit which is a plot admeasuring 50'x50' (around 2,500 Sq.ft.). The argument that Mr. Balaji is not party to the earlier suit Regular Civil Suit No.374 of 1988, is devoid of substance. This is because, what is required under section 10 is the status of the parties, which is clarified by the words under whom they or any of them claim litigating under the same title. Thus, the claim of Yehsanullha, who is 15 defendant No.3 in Regular Civil Suit No. 374 of 1988, and claim of Mr. Balaji, who is plaintiff in Regular Civil Suit No.254 of 1999, are one and same. Thus, claim pertains to the same property i.e. land Survey No.166. Mr. Balaji claims to be owner of small portion thereof i.e. plot No.7, admeasuring 50'x50' with the boundaries which he has given in the suit. 14. I have noticed the issues framed in both these suits. I have also noticed the pleadings raised, pertaining to passing of decree in Regular Civil Suit No.84 of 1988. Copy of the decree is made available. I have perused the copy of the decree passed and returned the same to learned counsel. In my view, application filed by the petitioner/ plaintiff is well within the sweep of section 10 of the Code of Civil Procedure. Rejection of the said 16 application, in the facts of the present case, virtually cuts across the provision of section 10 of the Code of Civil Procedure. The order impugned, passed by the Court below, being perverse requires to be quashed and set aside. 15. Writ petition accordingly is allowed. The order impugned in this writ petition is quashed and set aside. 16. I have considered the pendency of the suits. Now it is high time to direct the learned trial Court to decide and dispose of Regular Civil Suit No.374 of 1988 within a period of four months from the date of appearance of the parties in the trial Court. Parties shall appear before the trial Court on 11th of January, 2010 since Regular Civil Suit No.374 of 1988 is to come up before the trial Court on 11th January, 2010. It is made clear that hearing of 17 Regular Civil Suit No.254 of 1999 shall remain stayed till final disposal of Regular Civil Suit No.374 of 1988. 17. The observations made by this Court, in this order, are pertaining to the scheme of section 10 of the Civil Procedure Code and the learned Judge shall decide the suit i.e. Regular Civil Suit No.374 of 1988 on its own merits and in accordance with the provisions of law within four months from 11th January, 2010. [S.B.DESHMUKH, J.] Dated:06/01/2010. ans/6248 18 WRIT PETITION NO.: OF 200 Date of decision: 6th JANUARY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE