The first defendant in O.S. 205/1990 on the file of the Prl. Sub Court, Alappuzha is the petitioner in all these revision petitions.

2. O.S. 205/1990 was filed by the plaintiff for partition claiming 1/9 share of plaint schedule items A to C. The allegation is that it is a joint family property and the plaintiff is entitled to get the share. The third defendant in the said suit who is the younger brother of the plaintiff filed a separate suit as O.S. 207/1990 claiming that he is also entitled to 1/9 share in the property. I.A. 589/1998 was filed by the plaintiff in O.S. 205/1990 under Sec. 151 of the Code of Civil Procedure to consolidate O.S. 207/1990 along with O.S. 205/1990. I.A. 590 of 1998 was filed by the plaintiff in O.S. 207/1990 claiming the same relief. The first defendant in these suits filed I.A. 1309/1998 in O.S. 205/1990 for stay of that suit till the disposal of O.S. 205/1990 under Sec. 10 of the C.P.C. All these three applications were disposed of by a common order. The court below the applications for consolidation filed by the plaintiffs in the respective suits and dismissed the application filed by the first defendant seeking stay of O.S. 207/1990. Aggrieved thereby, these three revision petitions are filed by the first defendant.

The questions that arise for consideration are:

(1) Whether the civil revision petitions are maintainable under Sec. 115 of the Code of Civil procedure?

(2) Assuming it is maintainable, whether the order passed buy the court below is liable to be revised in exercise of the powers vested in this court under Sec. 115 of the C.P.C. and whether there is any illegality committed by the court below in dismissing the application filed by the first defendant for stay of O.S. 207/1990?

3. Even though the applications for consolidation and the application for stay were, filed at the interim stage of the suit, that has got the nature of a final disposal in that proceeding in so far as the matter becomes final on the question as to whether the latter suit should be stayed or not. Hence I find that these revision petitions cannot be rejected on the ground of non-maintainability.

4. Now the question arises as to whether any illegality is committed by the court below in refusing to stay O.S. 207/1990? Before adverting to the rival submissions made by the learned counsel for the petitioner and respondents, it is necessary to extract the provisions contained in Sec. 10 of the Code of Civil Procedure which reads as follows:

10. Stay of suit-No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between 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 jurisdiction to grant the relief claimed, or in any Court beyond the limits of (India) established or continued by (the Central Government) and having like jurisdiction, or before the Supreme Court.”

5. The court below found in its common order which is impugned in these revision petitions that the plaintiffs in both the suits are litigating under the same title and the subject matter involved in both the cases are substantially identical. It was observed that since these suits are for partition. It cannot be said that the subsequently instituted suit will be res judicata in the event of granting a decree in the prior case. According to the court below, the latter suit is a more comprehensive one than the earlier one and the 9th defendant in the latter suit has also preferred a counter claim which is an issue arising for consideration in the latter suit, which however is absent in the earlier suit.

6. Being a partition suit, though the defendants are also entitled to claim allotment of separate share by paying court fee, there is no law which compels them to adopt that course rather they are also entitled to claim their s