( 1 ) wp7855.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7855 OF 2010 Sau. Shindubai w/o. Anna Jadhav .. Petitioner Age. 54 years, Occ. Agri. & Household, R/o. Chass, Tq. & Dist. Ahmednagar. Versus Mhasu s/o. Baburao Jadhav .. Respondent Age. 62 years, Occ. Agri., R/o. Chass, Tq. & Dist. Ahmednagar. Mrs. M.D. Thube-Mhase, Advocate for the petitioner. Mr. D.R. Markad, Advocate for sole respondent. CORAM : V.R. KINGAONKAR,J. DATED : 10.01.2011 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith and heard finally. 2. The respondent filed application Exh.65 seeking stay of the suit (R.C.S. No. 555 of 2002) under Section 10 of the C.P.C. Similar application (Exh.37) was rejected by the Trial Court on previous occasion. The subsequent application (Exh.65) is, however, allowed. ( 2 ) wp7855.10 3. The respondents filed suit (R.C.S. No. 425 of 1989) for declaration and re-opening of partition. That suit was dismissed. The First Appellate Court, however, allowed the suit by reversing the decree of the Trial Court. The respondent preferred Second Appeal in this Court vide Second Appeal No. 574 of 2005. The respondent filed an application seeking permission to alienate one of the properties involved in the litigation and also sought modification of the ad- interim order dated 25.10.2005 rendered by this Court in the Second Appeal. The learned Single Judge of this Court (Hon’ble Mr. Justice R.M. Borde) allowed the application for modification vide order dated 18.01.2008. The learned Single Judge of this Court held that the injunction order issued against the original defendant No.3 in relation to creation of third party interest and the effect of such injunction would be only in respect of lands bearing Gat No. 201, 202/1 and 203. 4. The petitioner filed suit for perpetual injunction vide R.C.S. No. 555 of 2002. In her suit the petitioner’s ( 3 ) wp7855.10 case is that land bearing Gat No. 202/1 was in exclusive possession of her husband. The suit is for perpetual injunction. The suit came to be resisted by the respondents. The respondent alleged that the subsequent suit ought to be stayed under Section 10 of the C.P.C., in as much as earlier litigation between the parties was in respect of the similar issues involved and the property in the same. By the impugned order, the Trial Court allowed the application. 5. Heard learned Counsel for the parties. Perused the impugned order. 6. It is important to notice that the subsequent suit is only for perpetual injunction and therefore there is no similarity of the reliefs sought in both the suits. In the previous suit, the respondent and others sought declaration and re-opening of the partition. The very fact that they desired re-opening of the partition, impliedly goes to show that there was previous partition. The petitioner only claims protection under the relief of perpetual injunction. The protection will be available only if the petitioner will ( 4 ) wp7855.10 establish her lawful possession which is referable to legal right. The question of ownership is not required to be finally determined in such a case nor the question of validity of earlier partition can be the issue involved. Needless to say, there is no identity of the causes of action involved in both the suits and there is no similar identity of the reliefs claimed. In this view of the matter, it is not necessary to stay the subsequent suit i.e. R.C.S. No. 555 of 2002 and it may proceed. The only care and caution that will be taken by the Trial Court is to ensure that if the decree is rendered in favour of the petitioner then it shall be subject to final decision of the Second Appeal. 7. In the result the petition is allowed. The impugned order is set aside. Rule is accordingly made absolute in the above terms. [V.R. KINGAONKAR,J.] snk/2011/JAN11/wp7855.10