JUDGMENT :

1. The present civil miscellaneous petition has been filed to quash the order dated 26.06.2021 passed by the learned Sub-Judge-V, Samastipur in Title Suit No.141 of 2009 (Ram Bilas Yadav vs. Laxman Yadav), whereby the petition under section 10 of the Code of Criminal Procedure filed by the defendant-petitioner was rejected.

2. The averment of the defendant-petitioner is that the common ancestor of the petitioner and the respondent, Chulhai Raut died in 1951, leaving behind his three sons, namely, Ram Saran Raut (dead), Ram Lakhan Raut (dead) and Praye Raut (dead). Ram Saran Raut died, leaving behind his three sons, namely, (1) Shivnandan Yadav (2) Raghunandan Yadav and (3) Ram Bilash Yadav and three daughters, namely, (1) Dano Devi (2) Sheela Devi and (3) Parwati Devi. It is stated further that Shivnandan Yadav and Raghunandan Yadav both died issueless. Ram Bilash Yadav, third son of Ram Saran Yadav, is the present plaintiff of Title Suit No. 141 of 2009. The petitioner-defendant in Title Suit No. 141 of 2009 is the only son of Ramlakhan Raut, who is brother of Late Ram Saran Raut. The heirs of Pyare Raut have not been made party in the suit. The petitioner-defendant and his sons are plaintiffs in Partition Suit No. 24 of 2005. The respondent-plaintiff of Title Suit No. 141 of 2009 and his sons and heirs of Late Pyare Raut are defendants in Partition Suit No.24 of 2005. The petitioner-defendant filed Partition Suit No.24 of 2005 for partition of the jointly family property (Schedule-I of the plaint), claiming his 1/3rd share. In Schedule-I, the land in dispute in Title Suit No. 141 of 2009 has also been included in Schedule-I of Partition Suit No. 24 of 2005 along with other land as joint family property acquired by the common ancestor Late Chulhai Raut in his name.

3. It has been stated that Title Suit No. 78 of 2001 was filed by the plaintiff-respondent for declaration of his title and recovery of his possession over plot nos. 499 and 496, total area 2 Kattha 1 Dhur. In the said suit, the petitioner being sole defendant, has filed written statement, issues were framed, witnesses were examined and parties have also filed documents and the case came up for last stage, but because of the lack of pecuniary jurisdiction, by order dated 07.04.2009, the plaint was returned for want of the jurisdiction. Thereafter, the plaintiff filed fresh suit being Title Suit No. 141 of 2009 in the court of learned Sub-Judge, Samastipur for the same suit property and with the same relief. The learned Sub-Judge-V, Samastipur by his order dated 18.12.2020, directed that the suit would be tried denovo and he rejected the petition under section 10 of the Code of Civil Procedure for stay of that suit.

4. The learned counsel for the petitioner-defendant has submitted that admittedly the properties in dispute in Title Suit No. 141 of 2009 are subject matter of Partition Suit No. 24 of 2005 and the matter was directly and substantially matter in issue in both the suits. Parties are also either same or claiming under same ancestors. As such, as per mandatory provisions of Section 10, the subsequent suit, i.e. Title Suit No. 141 of 2009, should have been stayed. It was also necessary for inhibiting the multiplicity of the suits.

5. It is an admitted fact that the subject-matter of Title Suit No. 141 of 2009 was also a subject matter of Partition Suit No. 24 of 2005. But despite that some other properties were also included in Partition Suit No. 24 of 2005. In these circumstances, it cannot be inferred that “the matter in issue was directly and substantially involved in both the cases”.

6. The learned counsel for the respondent has relied upon the decision of the co-ordinate Bench of this Court reported in (i) 2013 (3) PLJR 782, (Rajesh Kumar Choudhary & others vs. Pradeep Kumar Choudhary & others) and (ii) 2016 (4) PLJR 507 (Sampatti Devi & others vs. Lalita Devi & others). In the case of Rajesh Kumar Choudhary & others (supra), after relying upon the