Section 10 of the Civil Procedure Code requires staying proceedings where the issues in the subsequent suit are directly and substantially the same as in an earlier suit involving identical parties.

CAV JUDGMENT

Date : 22-05-2025

The instant civil miscellaneous petition has been filed for setting aside the order dated 24.11.2022 passed by learned Sub Judge -I, Saran at Chapra in Title Suit No. 562 of 2020, whereby and whereunder the application dated 07.01.2022 filed by the defendant under Section 10 of the Code of Civil Procedure (in short ‘the Code’) with prayer to stay the proceeding in Title Suit No. 562 of 2020 has been rejected.

2. Briefly stated, the facts of the case are that the petitioner is defendant of Title Suit No. 562 of 2020 and the respondents are plaintiffs. The respondents have filed a title suit for declaration that in Plot No. 2551 under Khata No. 550, Mauza – Talpuraina, Police Station – Marhowrah, District – Saran, the plaintiff nos. 1 and 2 have got 1/3 share, plaintiff nos. 3 to 11 have 1/3 share and defendant has 1/3 share and in Plot No. 2528 under Khata No. 664 of the same village plaintiff nos. 1 and 3 have got 9 1/3 katha, plaintiff nos. 3 to 11, 9 1/3 katha and 2 1/3 katha of defendant. Further declaration has been sought that judgment and decree dated 18.11.2019 and 29.11.2019, respectively passed in Title Suit No. 191 of 2018 were not binding upon the plaintiffs. From the plaint, it appears that one Badri Raut was the common ancestor of the parties who died leaving behind 3 sons Sakhi, Lakhi and Sewak. Defendant is the descendant of Sakhi Raut whereas plaintiffs Kameshwar Rai and Rameshwar Rai were the descendants of Sewak Raut and other plaintiffs are descendants of Lakhi Raut. A partition took place in the three branches in the year 1971 to the tune of 1/3 share and the branches started cultivating their land separately and some of the property jointly. But no partition by metes and bounds took place. As there was no partition of ancestral property by metes and bounds amongst the ancestors, when the defendant Saheb Rai started selling the properties without any partition, plaintiff nos. 1 and 2 brought partition suit before the learned Sub Judge, Saran for partition of the ancestral property vide Title Partition Suit No. 65 of 2006 and the learned trial court decreed the suit in favour of plaintiff nos. 1 and 2. When the land of Khesra Nos. 2528 and 2551 was to be acquired for Marhowrah Diesel Locomotive Factory, the defendant Saheb Rai sought land possession certificate from the Circle Officer but the Circle Officer did not issue any certificate. Thereafter, even the appellate authority did not pass any order in favour of the defendant and observed that the defendant could file a case before the court of competent jurisdiction. Thereafter, defendant Saheb Rai filed a suit for declaration of 8 katha 5 dhur land of Plot No. 1551, Khata No. 599 and Plot No. 2528, Khata No. 664 vide Title Suit No. 367 of 2017. Subsequently, the plaintiffs came to know on 01.10.2020 that the defendant, by using forged papers, received the compensation amount of land acquisition. The plaintiffs also came to know that the defendant without making the plaintiffs party instituted a suit bearing Title Suit No. 191 of 2018 with regard to Plot Nos. 2528 and 2551 and got an ex-parte decree in his favour. Thus, in the light of the aforesaid facts, Title Suit No. 562 of 2020 has been instituted. The defendant appeared in the suit and filed his written statement denying the claim of plaintiffs about joint family acquisition of Plot Nos. 2528 and 2551 and also denying the plea of partition amongst the three branches of Badri Raut in 1971. The defendant took the plea that there was partition amongst 3 sons of Badri Raut in Jyesth of 1940 and all the an