Aggrieved by order dated 16.03.2011 whereby application under Section 10 r/w Section 151 C.P.C filed by defendant nos. 4 to 7 in Title Suit No. 488 of 2009 has been dismissed, the present writ petition has been filed.

2. The brief facts of the case are that, Title Suit No. 399 of 2007 was filed by legal heirs of one Mir Amjad against the legal heirs of late Mir Ashraf Hussain, seeking the following declarations:

(i) That late Mir Amjad, son of Mir Ali Hussain did not make any gift to Mir Ashraf, son of Late Ali Hussain in respect of land at Thana No. 197 admeasuring 78.75 decimal at Lalpur, Ranchi,

(ii) That there was no gift made by Mir Amjad in favour of Mir Ashraf and thus Mir Ashraf could not have acquired 1/2 share in the Suit Schedule Property and that the plaintiffs and Proforma defendant no. 11 have right, title and interest and possession over 1/3 share in the property described in the Suit Schedule Property,

(iii) That the judgment and decree passed in P.S. No. 244 of 198789 is not binding upon the plaintiffs and proforma defendant,

(iv) That late Mir Ashraf acquired 1/4 share in the property and thus, his legal heirs that is, defendant nos. 1 to 10 inherited 1/3 share in the Suit Schedule Property and,

(v) On adjudication the defendant nos. 1 to 10 be permanently/perpetually restrained from interfering with the possession of 1/3 share of the plaintiffs and proforma defendant no. 11 over the Suit Schedule Property.

3. In Title Suit No. 399 of 2007, the defendants appeared and filed written statement and thereafter, issues were also framed. In the meantime, one Mir Anwar Hussain and Mir Afzal Hussain both son of late Mir Ashraf Hussain filed Title Suit No. 488 of 2009 against respondent nos. 3 to 5 in the present writ petition, seeking a declaration that respondent nos. 3 to 5 have no right and title to hold the Suit Schedule Property by way of encroachment. The Suit Schedule Property is comprised in Plot/Sub-Plot Nos. 204, 205, 206, 207, 268 and 270 in Thana No. 197, Lalpur, Ranchi, total area 12.20 decimal. The present petitioners filed intervention in T.S. No. 488 of 2009 and they were impleaded as defendant nos. 4 to 7. The petitioners, after filing written statement filed a petition under Section 10 r/w Section 151 C.P.C. seeking stay of further proceeding in Title Suit No. 488 of 2009 till the disposal of the Title Suit No. 399 of 2007. The said application has been dismissed vide order dated 16.03.2011 and therefore, the petitioners have approached this Court.

4. Heard the learned counsel appearing for the petitioners and perused the documents on record.

5. Mr. A. K. Das, the learned counsel for the petitioners submits that, plaintiffs and the defendants in Title Suit No. 488 of 2009 are also parties in Title Suit No. 399 of 2007 and the Suit Schedule Property in Title Suit No. 488 of 2009 is included in the Suit Schedule Property in Title Suit No. 399 of 2007 and therefore, if the proceeding in subsequent suit that is, Title Suit No. 488 of 2009 is not stayed and it continues to proceed, the judgment and order passed in Title Suit No. 488 of 2009 may be in conflict with the order passed in Title Suit No. 399 of 2007 and in that event orders passed in both the suits may not be executed. It is thus submitted that, the proceeding in the subsequent suit that is, Title Suit No. 488 of 2009 should have been stayed till the decision in Title Suit No. 399 of 2007 however, the application under Section 10 r/w Section 151 C.P.C. has been erroneously rejected by the learned trial court.

6. In so far as, applicability of Section 10 C.P.C. is concerned, the law is well settled. In “National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara” reported in (2005) 2 SCC 256, the Hon'ble Supreme Court has held as under,

8. “…......... The fundamental 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