1 S/2 S.B. CIVIL WRIT PETITION NO.6593/2006. Aameen & Ors. Vs. The District Judge, Churu & Ors. Date of Order :: 17th March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Manish Shishodia, for the petitioners. Mr. S.K. Punia, for the respondent No.3. ..... BY THE COURT: This writ petition is directed against the order dated 26.08.2006 whereby the learned District Judge, Churu has ordered stay over further proceedings in Civil Original Suit No. 14/2002 essentially on the ground that the issue involved in the civil suit was directly involved in the previously instituted revenue suit that was pending at the appellate stage. The relevant background aspects of the matter are that on 19.04.1997, the present petitioners filed the revenue suit (No. 425/1997) in the Court of Sub Divisional Officer, Churu for declaration, correction of revenue record, and perpetual injunction while claiming their rights in the agricultural land comprised in khasra No. 933 (old khasra No. 254) as heirs of Suleman son of Ahmed. The plaintiffs referred to a previous revenue suit (No. 124/1959) regarding the said land between one Kurda son of Ganni and their predecessor Suleman 2 wherein, according to the plaintiffs, by the decision dated 27.05.1959, 72 bighas and 16 biswas of the said land was divided in the manner that 35 bighas and 6 biswas thereof came in possession of Suleman but then, the plaintiffs alleged, the entries in the revenue record went wrong inasmuch as the said portion of the land came to be recorded in the name of Suleman along with the defendants Nos. 1 to 3. While seeking necessary declaration in their favour, the plaintiffs claimed correction of such entries with deletion of the names of the defendants Nos. 1 to 3. The plaintiffs-petitioners allege that despite a restraint order against alienation as issued in the said revenue suit on 23.04.1997, the defendants proceeded to sell the suit property to the respondent No. 2; and on 09.07.1999, the Sub Registrar, Churu proceeded to register the disputed sale deed. The aforesaid civil suit (CO No. 14/2002) in the Court of District Judge, Churu has been filed by the plaintiffs-petitioners seeking cancellation of this sale deed dated 09.07.1999. After filing separate written statements, the defendants in the civil suit moved an application with reference to the provisions of Sections 10 and 151 of the Code of Civil Procedure (CPC) essentially with the submissions that the plaintiffs had filed the revenue suit (No. 425/1997) that was dismissed by the Sub Divisional Officer, Churu on 16.08.2000; 3 the appeal taken by the plaintiffs was also dismissed on 29.07.2002; and the matter was pending before the Board of Revenue in second appeal (No. 219/2002). The defendants alleged that the matter in the issue in the two suits i.e., the civil suit and the said revenue suit being the same and between the same parties, trial of the civil suit was required to be stayed. The plaintiffs-petitioners resisted the application so moved for stay over proceedings of the civil suit on the submissions that the previous one was the revenue suit filed for declaration of khatedari rights and for correction of revenue records whereas the civil suit has been filed for cancellation of sale deed; and thus, the subject matter of the two suits being different and matters in issue being also different, the civil suit was required to be proceeded with. The learned District Judge examined the relevant pleadings; and also noticed the fundamental issue framed in the civil suit on the questions as to whether the plaintiffs were the khatedars of the said land comprised in khasra No. 933 and as to whether the defendant No. 2 and the father and husband of the defendants Nos. 3 to 8 unauthorisedly and illegally sold the part of the said land by way of the questioned sale deed dated 09.07.1999. The learned District Judge found that the relief of cancellation of the sale deed as claimed in the civil suit was dependent on the plaintiffs’ claim of khatedari 4 rights; and the claim of khatedari rights was the core question to be decided in the previously instituted revenue suit that was pending in second appeal before the Board of Revenue. The learned District Judge, thus finding the right to relief in the civil suit being entirely dependent on declaration of the khatedari rights as claimed in the revenue suit; and with reference to the decision of this Court in the case of Moti Lal & Ors. Vs. Jagdish Prasad & Ors.: 2000 WLC (UC) 530, considered it proper to stay further proceedings in the civil suit until final disposal of the said revenue suit. Assailing the order so passed by the learned District Judge, Churu, the learned counsel for the petitioners has strenuously contended that one of the essential requirements for applicability of Section 10 CPC and stay of proceedings remains that the Court dealing with the previously instituted suit ought be competent to grant the relief claimed in the subsequent suit; and the relief of cancellation of a sale document being exclusively within the domain of the civil Court, in the present case Section 10 CPC does not apply at all. Learned counsel further submitted that the matters in issue in the two suits are separate and distinct inasmuch as the claim of khatedari rights is to be adjudicated only in the suit filed before the revenue Court whereas the claim for cancellation of sale deed is to be adjudicated only by the civil 5 Court; and the causes of action in the two suits being different, even if some of the parties to these suits are the same and even if some of the properties in dispute are also the same, the proceedings in the civil suit cannot be stayed. The learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of British Indian Corporation Ltd. Vs. M/s. Rastraco Freight Carriers : JT 1996 (5) SC 662. The learned counsel further submitted that the sale deed in question was executed in defiance of the restraint order of the competent Court and looking to the attempt on the part of the defendants to over-reach the process of law, it is rather expedient that the proceedings for cancellation of the sale deed are taken up and concluded at the earliest. The submissions as made by the learned counsel for the petitioner in this case remain meritless and cannot be accepted. It is at once clear that the claim for cancellation of the disputed sale deed, as made by the plaintiffs-petitioners in the civil suit, is fundamentally dependent on determination of the pivotal questions as to whether the plaintiffs are entitled to be declared the khatedar tenants in relation to land in question and as to whether the names of the defendants or their predecessors-in-interest are liable to be removed from the revenue records. Such questions are the essential and core 6 questions involved in the previously instituted revenue suit that is said to be pending at second appellate stage before the Board of Revenue. Until conclusion of the proceedings in the said revenue suit, the proceedings in the present civil suit were required to be, and have rightly been, stayed. In the given fact situation, the submissions as made by the learned counsel for the petitioner regarding non- applicability of Section 10 CPC or regarding difference of causes of action do not lead to the result that the civil suit is required to be proceeded with. Apart that one of the essential considerations while dealing with any litigation before the Court remains of avoiding the possibility of conflicting decrees or orders, the position cannot be gainsaid that the relief of cancellation of sale deed as claimed in the civil suit is based on the claim of the plaintiffs-petitioners as khatedars of the land in question. Such claim of khatedari rights being res subjudice in the previously instituted revenue suit, it was not at all proper that civil Court would have taken up the proceedings in the civil suit and pronounced if the plaintiffs were entitled to the relief of cancellation of sale deed before conclusion of the proceedings in the revenue suit. The decision of this Court in Moti Lal's case (supra) as relied upon by the learned Trial court having more or less akin 7 fact situation directly applies to the present case. Therein, the plaintiffs had filed two suits, first in the revenue Court seeking declaration of their right, title and interest and perpetual injunction; and thereafter, in the civil Court seeking cancellation of the sale deed executed in relation to the very same land in dispute. This Court precisely found that the success of the plaintiffs in the two suits depended on the proof of right, title and interest in the property in question and it was found that only upon their successfully proving the right, title and interest in the suit land that the plaintiffs would be entitled for declaration of khatedari rights and to protect their possession by the relief of injunction; and that the relief of cancellation of sale deed in the civil suit was an ancillary relief, dependent on the order to be passed in favour of the plaintiffs on declaration of their right, title and interest in the suit property. This Court found it expedient particularly for avoiding conflicting decisions on the question of right, title and interest of the plaintiffs that the Court could have exercised the jurisdiction of staying the proceedings under Section 151 CPC even if Section 10 CPC did not in terms apply. This Court said,- “5. The policy of law under Section 10 of the Civil Procedure Code is to confine the plaintiff to one litigation to avoid multiplicity of proceedings and conflicting verdict from the courts. If the revenue court and civil court both are permitted to proceed with the trial of the suit, there is a 8 possibility of conflicting verdict inasmuch as there may be conflicting decisions on the question of right, title and interest of the plaintiff's 1/15 share in khasra nos. 618, 619 and 625. To avoid this possibility the court can exercise jurisdiction of staying the proceedings under Section 151 of the Civil Procedure Code even if Section 10 of the C.P.C. in terms do not apply. 6. The aim of legislature in enacting various propositions of law or procedure is also to secure the ends of justice. In the case, like this court can exercise inherent powers. The stay under Section 10 of the C.P.C. is imposed by the court itself. It is not imposed by any other outside agency. The trial court has failed to see that the decree for cancellation of the sale deed could only be granted if there is a decree in favour of the plaintiffs declaring their right, title and interest in the suit property. By virtue of section 207 read with third schedule of the Rajasthan Tenancy Act, suit for declaration of any right in the land and declaration 'khudkast' is exclusively triable only by the revenue court and the decree for declaration of title would be the step required to be taken prior to a decree for cancellation of sale deed is granted, in the facts of the present case. Since the exclusive jurisdiction is vested with the revenue court of declaration of right, title and interest in the agriculture land, in the absence of such decree, no decree could be passed by the civil court in favour of the plaintiffs. Civil Court independently could not pass any decree for cancellation of the sale deed unless the right, title and interest of the plaintiff is established which could only be established before the revenue court.” The position aforesaid squarely applies to the case at hands; and the learned District Judge has not committed any error or illegality in staying the proceedings in the civil suit. For further reference on the exposition of law in this regard, 9 another decision of this Court in the case of Smt. Devi Vs. Bhanwari Lal: 1998 (1) RLW 440 could usefully be referred wherein this Court has pointed out,- “23. It is to be imbibed that for application of Sec. 10 CPC, four essential conditions are to be fulfilled, which are : firstly; the matter in issue in the second suit is also directly and substantially in issue in the first suit; secondly- that parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; thirdly- the court in which the first suit is instituted, is competent to grant the relief claimed in the subsequent suit and; lastly- that previously instituted suit is pending either in the same court in which the subsequent suit is filed or in any other court in India or any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the High Court or Supreme Court. Thus, Sec. 10 CPC is definite and mandatory. The court in which the subsequent suit is instituted is prohibited from proceeding with its trial. It is to be noticed that Sec. 10, CPC does not become inapplicable by holding that previously instituted suit is vaxatiously instituted in violation of the terms of the contract. 24. In abundant caution, it is held that Sec. 10 of CPC does not take away the inherent power of civil or revenue court to stay the subsequent suit under Sec. 151 CPC. In a peculiar facts and circumstances of a case if justice and fair play demands to stay the subsequent suit even if the aforesaid four conditions are not strictly fulfilled even then subsequent suit can be stayed under Sec. 151 CPC.” Thus, it is not correct to say that stay of proceedings in the suit by the Court dealing with the same depends only on the applicability of Section 10 CPC. In the given fact situation 10 and looking to the requirement of securing the ends of justice, the Court concerned has undoubted inherent powers to stay the proceedings in the suit before it. In the case of the present nature where the right to relief in the subsequently instituted civil suit essentially depends on the success of the plaintiffs in their claim of khatedari rights, which is to be adjudicated in the revenue suit, the civil Court was justified in not proceeding with the civil suit until final conclusion of the proceedings in the revenue suit. In the fact situation of the present case, the decision of the Hon'ble Supreme Court in the case of British Indian Corporation Ltd. (supra) has no application. Therein, the Hon'ble Supreme Court has noticed that the claim of the respondent in Suit No. 612/1994 was for recovery of the alleged dues payable by the appellant-Corporation while the suit of the appellant was for recovery of the goods lawfully entrusted to and unlawfully detained by the respondent. While finding the causes of action entirely different and no common issue directly or substantially involved, the Hon'ble Supreme Court found the High Court in error in staying the later suit. In the present case, as noticed, the claim of cancellation of sale deed as made by the plaintiffs-petitioners is entirely based on their claim of khatedari rights qua the land in question and such a claim of khatedari is the core issue directly involved in 11 the revenue suit and has to be decided at the first. The learned District Judge has rightly stalled the proceedings in the present civil suit until conclusion of the matter in the revenue suit. So far the suggestion as made by the learned counsel for the petitioner that the sale deed was executed in defiance of the restraint order and, therefore, the proceedings in the civil Court are required to be concluded at the earliest is concerned, it has not been pointed out if at all any proceedings were taken up before the Court issuing the injunction while complaining of disobedience and defiance of the injunction order; and at this stage of the proceedings, it is difficult to proceed on the assumption that the sale deed in question suffers from the vice of defiance. It is further noticed that the revenue suit as filed by the plaintiffs-petitioners has in fact been dismissed by the learned Trial Court and even the first appeal has also been dismissed. Though the matter remains pending in second appeal before the Board of Revenue and this Court would not be making comments on the merits of the said revenue suit but in the overall circumstances, there appears no reason or justification that the civil suit be permitted to be proceeded with before conclusion of the proceedings in the said revenue suit. In view of the aforesaid, this Court is satisfied that there 12 is no force in this petition and the impugned order calls for no interference. The writ petition fails and is, therefore, dismissed. However, there shall be no order as to costs. (DINESH MAHESHWARI), J. Mohan/