iT- 1 :-f THEHQN'BLE HIGM COURT OF CHHATT1SGARH AT BJLASPUR WRIT PETITION 227 N0. / 2.01Q PETJTiONERS a&.j^ji»^jL3 cxfe- '1. Suididev, S/o BudhyJJraen , ageclabout^^r^^i^^@gi3>J.»<-- ^^•'^'cw~».-ew^ Mjtttiu -S/o BudAu:iteQ.n ag&dabout^^arS) 5% N(ecuvS, ., 3. Luthuru S/o ^iuiya Uraon aged about^C^ea^ 6^ 'yao\& ^^ 4. Bedram, S/o gpya Uraon , aged about(5^(^a^, fe& <);ftd>\& ^ 5, AvG^..S(Q-SiiaKEe!(UraoR: Aged About ^2 Yea^s -2S'^eA3>S^ Alt Rto ViUase Baftbahar, Tahsil- Pathalgaon, DistL RaJgarh at Present Distt- Jashpuc (C.G.) VERSUS RESPONDENTS •- ^'\. Jaipal, Sto Dhadhuram Uraon fL^»J^[U f' 4^- agedabout^4yeag) c>:^'^<?j(klS ^ ^ .<v:^^7 •^.^7 yy /• ^ 'SwSvJ^^ Uo-6. (k^ >i- 2- Sucesh Pcasad, Sto Dadhuracn Uraon ,agedabout@ e5'li'f&&3^ ^ 3 Cbandrabhan, Sfo ESadb.ucam Utaon about(33)'i^S) «y-^•)3'\t)tn9>^ 4- SJafeifiActai ^. 4 Rbidhitat). S(Q Dadhucam Uraon, ^agedabout^ ^ S~^fQa>S^ •»- 5 Surendca Kumar, Sto Dadhurana Uiaon ,agedabout@^^t,'stU)^. _ „ , _ ^^./, ^o'V^a'yl^ipB.iUr^akriJ Pc^t^Uht 3®^ 6. State of Chhatisgarh,<e^^^ .^ (<>»csu(^'^* Through, theCDJtector, 'Jci^fwx^^ (C.G.) WR1T PJETITION UNDER ARTICLE 227 QF THE GQNSnTUTlON ^ HIGH COURT OF CHHATTI8GARH AT BILASPUR Writ Petition f227^ No. 155 of2010 PETITIONERS DEFENDANTS RESPONDENTS PLAINTIFF8 Sukhdev & others VERSU8 Jaipal & others WMT PETmON UNDER ARTICLE 227 OF THE CONSTITUTION OFJNDIA (SB: Hon'ble Mr. N.K. Agarwal, J.) Present : Shri Raghvendra Pradhan with Shri Sanjay Agrawal, Advocates for the petitioners. Shri Vishnu Kosla, Advocate for respondentNo. 1 to 5. Shri Vinod Tekam, Panel Lawyer for the State. ORAL ORDER (Passed on 01.02.2011) 1. The instant petition is directed against the order dated 09.01.2007, passed by the Civil Judge, Class II, Pathalgaon, Distt. Surguja, in Civil Suit No. 20-A/2005, whereby the petitioner's application filed under Section 10 ofthe Code of Civil Procedure, 1908 (for short 'CPC') has been rejected. Brief facts of the case as projected by the petitioners are that: the petitioners instituted a suit claming relief of declaration and permanent injunction against the present respondents on 09.04.1986. - The title was claimed on the plea of adverse possession. The suit was dismissed and appeal filed there-against was also dismissed. Second Appeal preterred by the petitioners is pending consideration before this court. Meanwhile, the respondents filed a suit against the petitioners elaiming reliefofdeclaration and possession with respect to same suit land on fhe date subsequent to filing of suit by the petitioners. The petitioners moved an applieation under Section of CPC for stay of suit and the same was dismissed vide order impugned. Hence this petition. Shri Raghvendra Pradhan, leamed counsel appearing for the petitioners would submit that petitioner's previously institirted suit is pending inasmuch as his Second Appeal is pending consideration before this court which is in contmuation of a suit, the matter in issue in the petitioner's suit and the siiit filed by the respondents are identical, both the suits are between the same parties for the same subject matter of the suit inasmuch as both the parties are claiming title over the same suit land, both courts are competent to try both the suits, therefore, the trial court has erred in dismissing the petitioner's application filed under Section 10 ofCPC. On the other hand, Shri Vishnu Kosta, leamed counsel appearing for 'the respondents supported the order impugned and woiild submit that cause of action and relief claimed in both the cases are not identical, and therefore, the trial court has rightly dismissed the application filed by the petitioners. I have heard the counsel appearing for the parties, penised the copy ofplaints and also penised the issues framed in both the suits. ,.^'^<--i^< >iei^ '"^. 9' S -^. 6. The petitioners are seeking relief of declaration of title based on adverse possession against the respondents and for restraining the respondents fi'om interfering in their possession, whereas the respondents are seeking relief of declaration of title and possession of the suit property. Undisputedly, the suit property is same. Section 10 ofCPC reads as under: "10. Stay of Suit -No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substentially in issue in a previously instituted suit between the same parties, or betvveen parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in [India] having jurisdietion to grant the relief claimed, or in any court beyond the limits of [India] establishedor continued by [the Central Govemment] and having like jurisdiction, or before [the Supreme Cpurt]." 7. The Supreme Court in case ofNational Institirte of Mental Health & Neuro Sciences v. C. Parameshwara has held in para 8 of its judgment as under: "8. The object underlying section 10 is to prevent Courts ofconGurrentjurisdiction from simultaneously trying two parallel suits in respect ofthe same matter in issue. The object underlying section 10 is to avoid two parallel trials on the same issue by twocourts and to avoid recording of confticting findings on issues which are directly and substantially in issue in previously instituted suit. The language of seetion 10 suggests that it is referable to a 2004 AK.SCW 6900 p» ~-;^ '%. ^ 'lts-<^ suit instituted in fhe civil court and it caimot apply to proceedings of other nature instituted under any other statute. The object of section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect ofthe same matter in issue. The fandamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res- judicata in the subsequent suit. Section 10 applies only in cases where the whole ofthe subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The word "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issiie". Therefore, section 10 would apply only ifthere is identily ofthe matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedmgs is identical." 8. The fundamental test to attract Section 10 is, whether on final decision being reaehed in the previous suit, such decision would operateas res-judicata in the subsequent suit as held by the Supreme Court in the above referred cases. 9. By applying the above dicta laid down by the Supreme Court in the above referred cases to the facts of the present case, it is clear that any decision passed in petitioners suit would operate as res-judicata in the suit preferred by the respondents, inasmuch as, if the defendants/petitioners succeeds in establishing their title based on adverse possession, the same would operate as res-judicata in the •••J~w^i 'Sf'-r'A 8 «?1' ^ tf' subsequent suit fUed by the respondents. On the other hand, if the petitioners fail in establishing their title based on adverse possession, then the respondent's suit for possession based on title would be decreed. 10. In view of above, the trial court went wrong in dismissing the application filed by the petitioners. Accordingly, order impugned dated 09.01.2007, being not sustainable in law, deserves to be and is hereby set aside. The application filed by the petitioner under Section 10 ofCPC is allowed and farther proceedings in Civil Suit No. 20-A/2005 is stayed till decision of petitioner's Second Appeal No. 520/2003. No order asto costs. 11. Let records of Second Appeal No. 520/2003 be sent back to the Registry forthwith so that the same may be listed for hearinj expeditiously. Sd/- N.K. Agrawal Judge Sahu