THE HON’BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.2731 of 2009 ORDER: The petitioners herein are the plaintiffs in O.S.No.166 of 1998 on the file of the Principal Senior Civil Judge, Chittoor, filed against the respondent- defendant for declaration of right and title in respect of ‘A’ schedule property and also for removal of construction made in ‘B’ schedule property. The ‘A’ schedule property is admeasuring East-West 22½ feet and North-South 83 feet, wherein a house also exists. The ‘B’ schedule property is a passage admeasuring East-West 1½ feet and North-South 83 feet on the western side of the plaint schedule property. Earlier, the respondent herein filed a suit in O.S.No.33 of 1990 before the same court against the 1st petitioner herein for declaration of his half right in the passage of 3 feet X 84 feet width situated between his house and the house of the 1st petitioner, which was decreed. Against which, the petitioners herein filed A.S.No.172 of 1997 on the file of the VIII Additional District Judge, Chittoor, which was dismissed. Aggrieved by the same, the petitioners herein filed S.A.No.537 of 2005 before this court and the same is stated to be pending. The present suit is filed by the petitioners herein in the year 1998 during pendency of A.S.No.172 of 1997 and the respondent herein filed I.A.No.239 of 2003 in O.S.No.166 of 1998 under Section 10 of CPC seeking to stay all further proceedings in O.S.No.166 of 1998 and O.S.No.3 of 2001 on the ground that the issue involved in the present suit is directly and substantially the same in the earlier suit in O.S.No.33 of 1990 and the said I.A. was allowed by order, dated 06-05-2003. Against the said order, the petitioners herein filed C.R.P.No.3287 of 2003 before this Court and this court granted interim suspension for a period of eight weeks and the same was vacated by this court on 12-03-2004. Further, as A.S.No.172 of 1997 itself was disposed of by the learned District Judge, Chittoor, during pendency of the C.R.P., the C.R.P. was dismissed by this court on 25-10-2005 as infructuous. It is not in dispute that during pendency of the appeal itself, the stay granted by the trial court in I.A.No.239 of 2003 was suspended by this court and thereafter, the same was vacated. Therefore, the suit could not be proceeded, as the stay granted by the trial court is in force. As against the order in A.S.No.172 of 1997, the petitioners herein filed S.A.No.537 of 2005 and the same is pending before this court. During pendency of the Second Appeal, the respondent herein once again filed I.A.No.550 of 2007 in O.S.No.166 of 1998 before the court below under Section 10 of CPC seeking to stay further proceedings in O.S.No.166 of 1998 and the connected O.S.No.3 of 2001, pending disposal of the Second Appeal. The said application was allowed by order, dated 21-03-2009. Aggrieved by the same, the plaintiffs in the suit in O.S.No.166 of 1998 filed this Civil Revision Petition. Learned counsel appearing for the petitioners submits that though the parties to the earlier suit and the present suit are one and the same, but the subject matter of the earlier suit is different and distinct from that of the present suit and, however, it cannot be said that the earlier suit in which decree was passed in favour of the respondent is pending and, therefore, the impugned order granting stay of all further proceedings in the present suit is unsustainable. On the other hand, the learned counsel appearing for the respondent submits that the subject matter of the earlier suit and the present suit is substantially same and if the Second Appeal is dismissed, the lower court cannot decide the issue, which was already decided in the earlier suit and, therefore, the court below rightly granted stay of all further proceedings of the present suit. In similar facts and circumstances, in I.A.No.239 of 2003 the trial Court granted stay of all further proceedings of the suit, which was upheld by this court by vacating the interim suspension on merits in C.R.P.No.3287 of 2003, and the said C.R.P. was ultimately dismissed as infructuous on the ground that the appeal was already disposed of. Merely because the petitioners herein filed Second Appeal, it cannot be said that they are entitled to go ahead with the trial of the suit. In view of the aforesaid facts and circumstances of the case, I do not see any infirmity either legal or otherwise in the impugned order, so as to call for interference by this Court under Article 227 of the Constitution of India. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. ___________ 15-03-2010 Prv