Hon'ble Pankaj Mithal, J.—Petitioner Krishna Bihari Mishra alongwith Indra Narain Mishra has filed suit under Section 229-B U.P. Z.A and LR Act, 1950 (herein after referred to as the Act) in the revenue Court on 20.9.2005 for a declaration that they be declared co-owners in co-possession of the land of gata No. 174 area 0.149 hectare and 637 area 0.394 hectare situate in Chandupur, Abrayan Pargana and Tehsil-Chail, District-Kaushambi.

2. The aforesaid suit is directed against Rajendra Prasad Mishra and Dharam Narain Mishra apart from the gaon sabha concern and the State of U.P. and is pending in the Court of Sub-Divisional Magistrate, Chail, District-Kaushambi.

3. One of the defendants to the suit Rajendra Prasad Mishra later instituted Original Suit No. 279 of 2006 against the petitioner and one another for a decree of permanent prohibitory injunction in respect of the above land restraining the petitioner and one another from interfering in his possession, use and cultivation of the said land.

4. The aforesaid suit is pending in the Court of Civil Judge (Junior Division) Kaushambi.

5. This is admitted as is also clear from the plaint of the above two suits that the contesting parties in both the suits are petitioner Krishna Behiari Mishra and respondent No. 2 Rajendra Prasad Mishra and that both the suits are in respect of the same property. One suit is pending in the revenue Court and the other in the Civil Court.

6. The petitioner in the subsequent suit which has been instituted by respondent No. 2 Rajendra Prasad Mishra in the Civil Court for a decree of permanent injunction raised an objection on which an issue was framed as to whether the proceedings of the suit are liable to be stayed under Section 10 CPC on the ground that the issue therein is also directly and substantially an issue in the previously instituted suit. The issue was decided by the Court of first instance vide order dated 8.1.2001 in favour of the petitioner but on the revision preferred by respondent No. 2, the order has been set aside permitting the trial Court to proceed with the suit on merits.

7. The revisional order dated 9.11.2012 refusing to stay the proceedings of the civil suit in exercise of powers under Section 10 CPC has been impugned in the present writ petition.

8. Sri B. Malik and Sri Amrendra Pratap Singh, learned counsel for the parties were heard by me with the clear understanding that the petition would be finally decided at the stage of admission on the basis of the documents forming part of the petition as no further documents were considered necessary from either of the sides for its disposal.

9. The submission of Sri B. Malik, learned counsel for the petitioner is that the provision of Section 10 CPC is mandatory in nature and when the two suits are between the same parties in respect of the same property by applying the test of res judicata, the proceedings of the injunction suit were liable to be stayed and therefore the revisoinal Court has erred in exercise of its jurisdiction in interfering with the order of stay passed by the trial Court.

10. Sri Singh, learned counsel for respondent No. 2 in reply has submitted that the suit for declaration filed by the petitioner under Section 229 of the Act is not maintainable as the rights of the parties over the said land had already been settled during the consolidation proceedings and that Section 10 CPC is applicable only where the two suits are pending in the Civil Court.

11. In this petition, the Court has only to see whether the proceedings of the subsequently instituted civil suit are liable to be stayed by virtue of Section 10 CPC and the question of the maintainability of the suit which has been filed under Section 229 -B of the Act is totally alien to the aforesaid issue and need not be gone into.

12. The principle on which the above rule is based is akin to principle of res judicata and is called res-sub-judice. It applies to the trial of the suit and not to its inst