IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1904 of 2006 SMT.SULEKHA DEVI, W/O Shri Braj Nandan Prasad, resident of Mohalla- Brahmpura, Town and District- Muzaffarpur.......Plaintiff- Petitioner. Versus 1. Nurool Hoda, S/O Late Reyazul Hassan, resident of Mohalla-Juran Chapra, Mahesh Babu Chowk, P.S. Brahmpura, P.O. MIT, Town and District- Muzaffarpur..............Defendant first party-Opposite Party Ist Set. 2. Most. Saleha Khatoon W/O Late Ataur Rahman. 3. Sakil Akhtar. 4. Shamshad. 5. Mohd. Nasirullah. 6. Mohd. Shaffiullah. All sons of Late Ataur Rahman. All residents of Mohalla-Baluatal, P.S. and Town Motihari, District- East Champaran...............Defendants Second Party-Opposite Parties- 2nd Set. 7. Dr. Braj Nandan Prasad, S/O Late Saryug Sah, Shrikrishna Diagnostic Laboratory, Mahesh Babu Chowk, Juran Chapra, P.S.Brahmpura, P.O.-G.P.O., Town and District- Muzaffarpur. ................Defendant 3rd Party, Opposite Party-3rd Set. ------------- For the petitioner: M/S. S.K. Verma, Sr. Advocate and Rajnandan Pd. Singh, Advocate. For the O.P.Nos. 2 to 6 : Mr.Harish Kumar, Advocate. For O.P. No. 7 : Mr. Jitendra Kishore Verma, Advocate. ------------- 14. 21.12.2009. I.A. No. 4683 of 2006 has been filed for condoning the delay of about two months in filing of this Civil Revision. In this Interlocutory Application, averments have been made with regard to ill health of the plaintiff- petitioner and also the fact that her son-in-law, who was her pairvikar was also engaged in treatment of the plaintiff-petitioner as at the relevant point of time, as a result of which there has been delay of about two months in filing of this Civil Revision. A counter-affidavit has been filed on behalf of the 2 defendant- opposite party no.1. Though the learned counsel appearing on behalf of the opposite party no.1 has opposed the prayer for condoning the delay, however, though a detailed counter-affidavit has been filed, no averment controverting the statements made in paragraph nos.3, 4 and 5 has been made on behalf of the aforesaid opposite party no. 1. As a result, I. A. No.4683 of 2006 is allowed and delay in filing of this Civil Revision is condoned. Now, I proceed to consider and dispose of this Civil Revision on its own merit. Heard the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the opposite parties no. 1 to 7. This Civil Revision is directed against the order dated 03.06.2006 passed by the Sub-Judge, Vth, Muzaffarpur, in Title Suit No. 251 of 2005 whereby further proceedings of the suit has been stayed, upon a petition filed by the defendant- opposite party no.1, till the disposal of Title Suit No. 08 of 1983 and Partition Suit No. 58 of 1983. Learned counsel appearing on behalf of the plaintiff- petitioner submitted that one Bashir Ahmad had acquired 2 Bigha 6 Katha and 11 ½ Dhoors of land including the lands appertaining to Plot No. 520 in the year 1954. Half of the aforesaid purchased property was sold by the aforesaid Bashir Ahmad(now deceased) to Reyazul Hassan, however, in the name 3 of Nurool Hoda, who is the son of Riyazul Hassan. Nurool Hoda had also executed a registered deed of gift in favour of his son Parveez Akhtar, specifically mentioning therein that in a mutual partition with regard to the lands in question, he has been given eastern half of the plot of Survey Plot No. 520 of which he had executed a deed of gift and, thus, he has admitted allotment of western half of the said plot in the share of the heirs of Bashir Ahmad. It is further submitted that the defendant-opposite party no.1, Noorul Hoda, had filed Title Suit No. 08 of 1983 impleading the heirs of late Bashir Ahmad as defendants therein. Ataur Rahman, the vendor of the petitioner was one of them. The suit was filed for declaration that Bashir Ahmad and his heirs were mere name lenders regarding the Schedule-II properties of the plaint and also for declaration of title of plaintiff, with a further relief for permanent injunction. It is submitted that the plaintiff wanted a declaration that the sale deed dated 13.12.1954 was a Benami purchase in the name of Bashir Ahmad and the plaintiffs are the real owners. Subsequently, a Partition Suit No. 58 of 1983 was filed by the vendor of the plaintiff Ataur Rahman for partition of lands purchased by the aforesaid sale deed dated 13.12.1954 impleading the opposite party no.1 as well as other heirs of Bashir Ahmad etc. as party defendant therein. Thereafter, during the pendency of the aforesaid suits, the petitioner purchased 17 ½ Dhoors of land appertaining to western portion 4 of plot no. 520 from Ataur Rahman, the plaintiff of Partition Suit No. 58 of 1983. It is claimed that thereafter her name was mutated in Revenue records of the State upon rejection of objection raised by the opposite party no.1. However, for perfecting her title, a Title Suit No. 251 of 2005 was filed by this petitioner for declaration of her right and title upon the property purchased from Ataur Rahman (the plaintiff of Partition Suit No. 58 of 1983). In this suit, the opposite party no.1 as well as other heirs of late Ataur Rahman (who had died during the pendency of the aforesaid partition suit no. 58 of 1983) and her husband Dr. B.N. Prasad have been impleaded as defendants. Thereafter, on 31.03.2006 a petition was filed by the opposite party no.1 under Section 10 of the Code of Civil Procedure for stay of Title Suit No. 251 of 2005 till the disposal of the earlier aforesaid suits. The issue was contested, however, by the impugned order dated 03.06.2006 the court had allowed the prayer and stayed the further proceeding of the suit till the disposal of Title Suit No. 08 of 1983 as well as Partition Suit No. 58 of 1983. Learned counsel appearing on behalf of the petitioner submitted that for staying of further proceeding of the subsequent suits the matter and the issue must be directly and substantially the same in all the suits and whole of the subject matter in both the proceedings have to be identical. In support of the aforesaid submissions, learned counsel has placed reliance upon a decision of the Apex Court rendered in National Institute 5 of Mental Health & Nauro Sciences Vs. C. Parameshwara reported in A.I.R. 2005 S.C. Page 242. It is further contended that in the partition suit as well as in the earlier Title Suit aforesaid the area of dispend property is larger and other plots are also involved whereas in the present suit, only a part, i.e., 17 ½ Dhoors of the western portion of Plot No. 520 is an issue and the parties are also not exactly the same. The petitioner, though had filed a petition under order 1 Rule 10 of the Code of Civil Procedure for her impleadment as party defendant in the aforesaid partition suit, as not yet impleaded as party as the aforesaid application is yet to be disposed of . It is also submitted that plaintiff’s evidence has been closed in this case whereas in the aforesaid cases even the issues are yet to be framed. Learned counsel appearing on behalf of the opposite parties no. 2 to 6 as well as 7 has supported the case of the petitioner. Learned counsel appearing on behalf of the opposite party no.1 submitted that the petitioner’s husband was living in the concerned house as a tenant. During the pendency of the partition suit concerned, the plaintiff himself without leave of the court, had transferred a part of the property in the name of the petitioner whose husband was living there as a tenant. It is contended that filing of the partition suit by the vendor of this petitioner sufficiently shows that even according 6 to them, the property was joint and, thus, he was not entitled to transfer a portion of the property till the same had been given and decreed in favour of the plaintiff. However, it is submitted that in fact the husband of this petitioner was living as a tenant of the defendant-opposite party no.1 and was regularly paying rent to him but subsequently her husband stopped paying rent and allegedly the wife has purchased the property from the Benamidar, i.e., the plaintiff of partition suit no. 58 of 1983. It is informed that the opposite party no.1 had already filed an eviction suit bearing Eviction Suit No. 07 of 2005 for eviction of the aforesaid Dr. B. N. Prasad, one of the defendants in the present Title Suit no. 251 of 2005, from the suit premises, which is also pending. I find force in the submissions raised on behalf of the opposite parties. During the pendency of the partition suit, the plaintiff who himself has brought the suit for partition of the suit properties, without taking leave of the court, had transferred a part of the property in favour of the petitioner. The petitioner can not claim an independent title rather she can claim a title through her vendor only whose claims are still at stake in the aforesaid title suits and the decision rendered therein and decree passed therein would definitely bind this petitioner as at best she would enter into the shoes of her vendor. The entire property involved in the suit is subject matter of the aforesaid earlier suits and this 7 Court has been informed that after getting the sale deed in her favour the petitioner had already filed an application for her impleadement as party in the suits concerned. Thus, in my opinion, the matter which is in dispute bearing Title Suit No. 251 of 2005 is directly and substantially in issue in the aforesaid Title Suit No. 08 of 1983 as well as partition suit no. 53 of 1983 and the entire subject matter of the present suit is subject matter of aforesaid suits also which are pending for disposal since 1983. As a result, I do not find any jurisdictional error committed by the court below while passing the impugned order staying the proceedings of present suit till the disposal of earlier suits. As a result, this Civil Revision is dismissed. However, since the aforesaid earlier Title Suits are of the year 1983 and it has been submitted that issues are yet to be framed, I direct the concerned court to take every steps for expeditious disposal of the Title Suit No. 08 of 1983 as well as Partition Suit No. 58 of 1983. U.K. (Dr. Ravi Ranjan,J)