Heard learned counsel for the parties.

2. The petitioners in the present application under Article 227 of the Constitution of India are aggrieved by the order dated 16.03.2010 passed by learned Sub Judge VIII, Bhagalpur in Title Suit No. 260 of 2006 (hereinafter second suit) whereby the court below rejected the prayer of the petitioners under Section 10 of the Code of Civil Procedure for stay of the proceeding of Title Suit No. 260 of 2006 till disposal of Title Suit No. 226 of 2006 (hereinafter referred to as the first suit) pending in the court of Sub Judge VII, Bhagalpur.

3. The petitioners are the plaintiffs in Title Suit No. 226/2006 (first suit) whereas the respondents, the defendants in the second suit. A registered sale deed executed on 24-03-2006 by Most. Sumitra Devi (since deceased) is under challenge which appertains to suit land admeasuring 2204 Sq. ft., which according to petitioners, is undivided part or portion of schedule-A property of the plaint, total of which measures .1140 hectares equivalent to nearly 10,000 Sq. ft. Subsequent to the said first suit Title (Partition) Suit No. 260/2006 i.e. second suit has been filed by Pradip Kumar Choudahry, who is respondent No.1 in the present application, seeking preliminary decree of partition to the extent of 1/8th share and interest in the suit property described in schedule-A of the plaint having total area of .1140 hectares equivalent to 10,000 Sq. ft. To be precise, the dispute in the first suit is with regard to validity of a sale deed appertaining to part of the total land of the joint family property whereas in the second suit, one of the co-sharers in the family has sought partition claiming share to the extent of 1/8th of the schedule-A property.

4. In view of the nature of and the property in dispute in the two suits, the petitioners filed a petition under Section 10 of the Code of Civil Procedure for stay of the second suit as matter in issue in the second suit, according to them, was directly and substantially in issue in the first suit. The petitioners took a plea in their petition that both the suits have been instituted between the same parties. The court below, however, rejected the petition by the impugned order on the ground that the matter in issue was not directly or substantially the same in both the suits.

5. The present application, thus, involves the only question as to whether the matter in issue in both the suits is directly and substantially the same.

6. Mr. Upendra Prasad, learned counsel appearing on behalf of the petitioners, has vehemently contended, with reference to the property involved, that in both the cases same piece of land is in dispute and in terms of Section 10 of the Code of Civil Procedure it is mandatory that first suit should be tried first and till conclusion of the trial of the first suit, trial of second suit should be stayed.

7. Mr. Rajendra Narain, learned senior counsel, appearing on behalf of the respondents, on the other hand, has submitted that matter in issue in both the cases are neither substantially nor directly the same. He submits that in the first suit, sale deed with respect to only part of the entire property is under challenge whereas in the second suit, the plaintiff has sought for partition in the entire joint family property having area of .1140 hectares equivalent to 10,000 Sq. ft.

8. The principle underlying Section 10 of the Code of Civil Procedure is based on the well recognized doctrine of res subjudice object of which is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and same relief but intends to protect a person from multiplicity of proceedings and to avoid conflict of decisions. The test for applicability of Section 10 has been clearly laid down by Supreme Court in the case reported in (2005) 2 SCC 256 (National Institute of Mental Health & Neuro Sciences V