ORDER

The petitioner has filed the present petition being aggrieved by order dated 07.01.2021 passed by Civil Judge, Class-II whereby proceeding of the suit has been stayed under the provision of Section 10 of Civil Procedure Code, 1908.

Facts of the case in short are as under:

02. The petitioner (plaintiff) and respondent (defendant) are real brother. According to the plaintiff, he is an owner and occupier of the land bearing survey No.1181 area 0.670 hectare situated at Malharganj, District Mandsaur. On 10.01.2018 plaintiff reached to his agricultural field and found that the defendant has illegally encroached over the land. Initially, the plaintiff filed the suit for permanent injunction but later on amended to the extent of relief of possession, means profit and compensation. The suit is pending since 23.01.2018.

03. The defendant filed an application under Section 151 of CPC seeking dismissal of the suit on the ground that this suit property is a subject matter of First Appeal No.710/2016 (Kesharbai and others V/s Arvind Kumar and others) before this Court in which the order of status quo dated 29.06.2016 has already been granted. The plaintiff opposed the said application by submitting that, that suit was filed by Kesharbai, Santosh Kumar and Sanjay Kumar against this present plaintiff and defendant for declaration and permanent injunction in respect of all the Joint Hindu Family Property / land. The entire suit has been dismissed vide judgment dated 27.04.2016, therefore, the present suit is not liable to be dismissed.

04. Learned trial Court however, considered the application not under Section 151 of CPC but under Section 10 of CPC and stayed the suit because the present suit property is also included in the previous suit i.e. now first appeal. Hence, this petition before this Court.

05. Shri Jitendra Bharat Mehta, learned counsel for the plaintiff submits that so far as the present suit property is concerned, the plaintiff is claiming exclusive right and title of the suit land that came into his share by way of partition and now the defendant is trying to take away the said land, therefore, for protection of his land he has filed this suit as he cannot claim this relief against the defendant in the previous suit / first appeal in which he is a co-defendant along with him. Therefore, this present suit is maintainable and order of stay has wrongly been passed by the learned Civil Judge.

06. Shri Vinay Puranik, learned counsel for the defendant submits that the suit property of this suit is admittedly subject matter in the previous suit / first appeal and if, any decree of declaration is passed in the first appeal that would naturally affect the final outcome of this suit and to some extent shall apply res judicata also. Therefore, the learned trial Court has rightly exercised the power under Section 10 of CPC and stayed the suit.

07. The previous suit was filed by mother and two brothers i.e. Santosh Kumar and Sanjay Kumar against remaining 2 brothers i.e. Arvind Kumar and Trilok Kumar (plaintiff and defendant in the present suit) in respect of the whole Joint Hindu Family Property. The plaintiffs are seeking declaration of title of a joint owner of the suit property and the injunction that defendants be restrained not to sale the same to anyone. In the said suit, the present plaintiff filed separate written statement as defendant No.1 and in which by way of special pleading he pleaded that the Tehsildar Malharganj in case No.45-A of 27/1989-1990 vide order dated 10.07.1990 recorded his name as owner of the suit land bearing survey No.1181 area 0.670 hectare. The defendant is separately contesting the earlier suit (now first appeal) as defendant No.2. The present suit is filed by plaintiff Arvind Kumar in order to protect his suit land from the defendant by seeking permanent injunction and now the possession because during pendency of the possession the defendant said to have dispossessed him.

08. Therefore, the dispute betwe