Section 10 CPC applies when the entire subject-matter of two suits is the same, and it will not apply when only a few matters in issue are common.

SHREE CHANDRASHEKHAR, J.

Aggrieved by order dated 21.05.2014 in Title Suit No.45 of 2012 whereby, application under Section 10 CPC has been rejected, the present writ petition has been filed.

2. The brief facts of the case are that, Title Suit No.31 of 1989 was instituted by the petitioner no.1 and deceased Rashidan Bibi against one Amina Khatoon and other four persons. In the suit, besides share in the suit property, a declaration that agreement dated 02.02.1983 executed by the defendant nos.1 to 3 and the saledeed in favour of the defendant nos.4 and 5 executed by defendant nos.1 to 3 dated 07.01.1986 bearing saledeed nos.169 and 170 are void and illegal was sought. The suit was dismissed on 22.12.2011 and thereafter, Title Suit No.45 of 2012 was instituted by Miraj Ahmad and Halima Khatoon. In the subsequent suit, the petitioners are defendant nos.1 and 2. Title Suit No.45 of 2012 was instituted seeking a declaration of joint ownership over the suit premises by virtue of saledeed executed by Amina Bibi and her two daughters on 07.01.1986. A decree for recovery of possession of the suit premises was also sought. In the pending Title Suit No.45 of 2012, application dated 04.09.2013 was filed seeking stay of further proceeding in the title suit on the ground of pendency of Appeal No.32 of 2012, which was filed by the petitioners challenging judgment and order dated 22.12.2011 in Title Suit No.31 of 1989. The said application has been dismissed vide order dated 21.05.2014. Aggrieved, the petitioners have approached this Court.

3. Heard the learned counsel for the parties.

4. The learned senior counsel for the petitioners submits that the appeal is a continuation of the suit and in both the suits, one of the issues is challenged to saledeed dated 07.01.1986. If the validity of saledeed dated 07.01.1986 is decided in favour of the petitioners, it would conclusively bar relief claimed in Title Suit No.45 of 2012. It is contended that the expression used in Section 10 CPC is directly and substantially and since in both the suits, the main issue is the same and similar, further proceeding in Title Suit No.45 of 2012 should have been stayed. It is contended that in the event both Title Suit No.45 of 2012 and Title Appeal No.32 of 2012 are decreed, orders passed in Title Suit No.45 of 2012 and Title Appeal No.32 of 2012 cannot be given effect to.

5. Per contra, Mr. Kalyan Banerjee, the learned counsel for the respondents submits that both the suits are based on different causes of action and issues in both the suits are different though, some of the issues may be same and therefore, Section 10 CPC has no application in the present case.

6. In Title Suit No.31 of 1989, the plaintiffs have admitted that the plaintiffs and defendant nos.1 to 3 are governed by Mohammedan law. The father of plaintiff no.1 and the husband of plaintiff no.2 as well as the husband of defendant no.1 and father of defendant nos.2 and 3 were own brothers, who were sons of Sk. Hussain. It was asserted by the plaintiffs that at the time when the suit property was acquired, father of the plaintiff no.1 has just resigned from the service and received settlement dues and out of that fund, he purchased the suit property. In the suit besides claiming 2/3rd and 1/3rd share each for the plaintiffs, a declaration for partition of the suit property in terms of agreement dated 02.02.1983 and in accordance with the law of inheritance and succession between the plaintiffs and defendant nos.1 to 3 has also been sought. Another relief sought in the suit was for a declaration that saledeed nos.169 and 170 both dated 07.01.1986 executed by defendant nos.1 to 3 in favour of the defendant nos.4 and 5 are illegal and fake documents. Whereas, Title Suit No.45 of 2012 was instituted seeking a declaration of joint ownership over the suit property by virtue of saledeed dated 07.01.1986 and for a decree of recovery of possession. In Title Suit No.31 of 1989, following issues were fra