1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9178 OF 2009 Chandrakant Baburao Jadhav & Ors. .. Petitioners Vs Yashwantrao Dattajirao Bhosale & Ors. .. Respondents -- Shri V.B. Rajure for the Petitioners. Shri Madhav Jamdar for Respondent Nos.1 to 3. -- CORAM : A.S.OKA,J. DATE : 8TH JANUARY, 2010 P. C. I have heard the submissions of the learned counsel appearing for the parties. The Petitioners who are the original Defendants have challenged the judgment and order dated 11th August, 2009 passed by the trial Court below the Application Exhibit-146 in Regular Civil Suit No.336 of 2003. 2. It is necessary to refer to the facts of the case. The 1st to 3rd Respondents herein filed Regular Civil Suit No.336 of 2003 in the Civil Court at Kolhapur. The present Petitioners have been impleaded as party Defendants in the said suit. The subject matter of the suit is the property bearing Gat Survey No.83A/1 which is more particularly described in Paragraph 1 of the Plaint. Prayer in the suit is for directing the Defendants therein to remove construction made on the suit property. The suit is essentially for removal of encroachment. The Petitioners contested the suit by 2 filing Written Statement. Issues have been framed in the suit. The 1st issue is regarding the ownership of the Respondents over the suit property. The 2nd issue is regarding the alleged encroachments by the 1st Petitioner herein (1st Defendant herein). The 3rd issue is based on the contention of the Petitioners that they have become owners by adverse possession. 3. The Petitioners filed Regular Civil Suit No.7 of 2003. The said suit relates to an area of 51 Ares out of Gat No.83A/1. In the said suit, the prayer is for perpetual injunction for protecting the possession of the Petitioners. In the said suit, the Petitioners are claiming to be in possession of the property subject matter of a suit as tenants thereof. 4. The impugned order has been passed on the application made by the Petitioners in Regular Civil Suit No.336 of 2003 invoking Section 10 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the saide Code”). Prayer in the application is for staying of hearing of the said suit till hearing of the Regular Civil Suit No.7 of 2003. By the impugned order, the said application has been rejected. 5. The submission of the learned counsel appearing for the Petitioners is that the suit property subject matter of both the suits is the same. He submitted that in the suit filed by the Respondents, they have claimed ownership and have alleged that the Petitioners have committed an 3 act of encroachment. He submitted that in their suit, which is prior in point of time, the Petitioners have claimed protection of their possession on the basis of the tenancy rights. He, therefore, submitted that the trial Court has committed an error by rejecting the prayer for stay. 6. I have carefully considered the submissions. As pointed out earlier, in the suit filed by the Petitioners they claim to be in possession of an area of 51 Ares out of Regular Survey No.83A/1 as tenants thereof. Even assuming that the subject matter of a suit filed by the Respondents is the same, the defence of the Petitioners in the said suit is that they have perfected their title to the suit property subject matter thereof by adverse possession. Hence, the issues involved in the subsequent suit are not directly and substantially involved in the earlier suit instituted prior in point of time. Thus, Section 10 of the said Code has no application, and the trial Court has rightly rejected the said application. No fault can be found with the impugned order. The Writ Petition is accordingly rejected. JUDGE