A suit for eviction should not be stayed just because a counter suit for declaration of title is instituted by the defendant of the ejectment suit.

( 1 ) THIS revision is directed against an interlocutory order passed by the Civil Judge, First Class, Gwalior on June 29, 1959 in Civil Suit No. 20 of 1955 whereby he has refused to stay the suit on the application of the defendant.

( 2 ) THE facts material for this revision are these:-The plaintiffs, Kashinath and Rambabu, brought this suit on January 8, 1955, against the petitioner Radhey Shyam for ejectment from a shop and for arrears of rent on the allegations that the suit shop, situated in the ground floor of a building called "sweet Cottage," was taken from them by the defendant on June 16, 1954, under a rent note executed by him at Rs. 35/- per month for 11 months that the defendant paid Rs. 30/- on the 26th June Rs. 35/- on the 31st August and again Rs. 35/- on the 6th October 1954; that they were in arrears of rent from the 16th June to the 31st December, 1954; that the defendant started interferring with the plaintiffs' possession in respect of other portions of the house, that when the plaintiffs gave him a notice, he disputed their title and asserted his own; and that a notice of eviction was given by the plaintiffs on the 11th December, determining the tenancy on the 31st December, 1954. This suit was instituted on January 8, 1955, and was numbered as civil original suit No. 20 of 1955. This will hereinafter be called the First Suit.

( 3 ) BEFORE filing his written statement in the first suit, Radhey Shyam along with his father and brothers filed a separate suit in the Court of the District Judge, Gwalior, for partition of joint Hindu family property alleging that Kashinath, Ram Babu and their sons together with the plaintiffs in that suit were all coparceners of a Hindu co-parcenary. That suit was instituted on March 22, 1955 and will conveniently be called the second suit. In that suit the property in dispute in the first suit was also included.

( 4 ) THEN Radhey Shyam filed his written statement in the first suit on April 29, 1955, wherein he denied to have executed a rent note as alleged by the plaintiffs, denied to be a tenant in the disputed shop, reiterated his status as a coparcener in firm Nandram Narain Das, a joint Hindu family firm, and alleged that since the suit shop belonged to that firm he was also a co-owner of the shop. He admitted to have paid the three amounts as asserted in the plaint but explained it by saying that Kashinath had represented to him that the payment of these monies would in no way prejudice his rights because he (Kashinath) was charging rent even from his own sons and, for the satisfaction, of the defendant, Kashinath handed over to him three receipts which had been passed in favour of his own son Laxmandas. Inter alia the plaintiffs' right to bring this suit was challenged.

( 5 ) ON August 6, 1957, Radhey Shyam applied to the Court, in the first suit, to stay it under Section 10 or Section 151 of the Code of Civil Procedure. That was opposed by the plaintiffs. The trial Judge held that Section 10 of the Code of Civil Procedure was not attracted and that he did not consider, for the reasons he stated, that it was a fit case for stay in exercise of his inherent powers. The main consideration which weighed with him was that since in the first suit there would be no inquiry as to the title of the parties and the trial would be confined to the contract of tenancy, there would be no prejudice to the defendant.

( 6 ) SHRI Patankar, learned counsel for the petitioner, strenuously contends that the first suit must be stayed because it is a possessory suit and preference must be given to the second one which is a title suit; secondly, the stay of the first suit will avoid the possibility of two conflicting judgments, for it is likely that in the first suit the Civil Judge may hold that the defendant is not a coparcener while in the second suit he may be declared to be a coparcener; and, thirdly that if the first suit is not stayed, finding by that Court whether the defe