Section 10 of the Code of Civil Procedure does not apply if the issues in two suits are not identical; a suit under Section 6 of the Specific Relief Act focuses solely on possession regardless of title.

JUDGMENT

Date : 31-07-2025

The instant civil miscellaneous petition has been filed by the petitioners for setting aside the order dated 08.04.2019 passed by the learned Munsif, Narkatiyaganj in Title Suit No. 12 of 2015 whereby and whereunder the learned trial court has allowed the petition filed by defendants/respondents under Section 10 of the Code of Civil Procedure (for short ‘the Code’).

2. Briefly stated, the facts of the case, as flowing from the record, are that the father of the respondents filed Title Suit No. 75 of 2007 against the husband of petitioner no.1 and father of petitioner nos. 2 to 5 seeking preliminary decree of account and assessment of amount payable to the defendant and also for return of the mortgage deed of the plaintiff after taking back mortgage amount and also for delivery of the mortgaged property. Further, pursuant to the preliminary decree, passing of a final decree was also prayed for payment of all accounted and assessed amount by the plaintiff to the defendant. The original plaintiff stated in his plaint that he owned and possessed schedule 1 land of 3 katha 10 dhur and as he was in need of money, he entered into negotiation with the defendant to mortgage his schedule 1 land by executing a deed of Bainama Basart Wapasi for a consideration amount of Rs. 30,000/- and the defendant agreed to purchase the land with condition to return the land to the plaintiff on demand on the payment of price amount of Rs. 30,000/-. The plaintiff executed the deed on 07.11.2000. The plaintiff further stated that as no time was fixed for return of the land in the deed of Bainama Basart Wapasi, the land was to be returned by the defendant to the plaintiff at any time on demand by the plaintiff and payment of price money to the plaintiff by the defendant. After execution of the deed of Bainama Basart Wapasi, the possession was delivered to the defendant. Thus, the plaintiff claimed that in fact the deed of Bainama Basart Wapasi is virtually a mortgage by conditional sale and the deed is a mortgage deed. Thereafter, the plaintiff claims he approached the defendant on 02.02.2007 and asked him to accept the price amount and execute a registered return deed and give back possession of the land as per terms and conditions of the mortgage deed but the defendant refused to accept the amount and execute a return deed to deliver back the possession of the land to the plaintiff. The plaintiff sent a notice to defendant by registered post on 05.02.2007 which was returned undelivered. Another notice was sent through registered post on 21.02.2007 to the address of the defendant and this registered cover was also returned undelivered. Thereafter, the plaintiff filed the present suit for the aforesaid reliefs. The defendant appeared and filed his written statement contesting the claim of the plaintiff. The defendant claimed that the deed was not a deed of mortgage with conditional sale and it was an outright sale deed. No time limit was given in the deed for return so it is clear that the claim of the plaintiff about deed of mortgage by conditional sale is not correct and he has got no right to file the suit for redemption. Meanwhile, during pendency of Title Suit No. 75 of 2007, the plaintiff forcibly dispossessed the defendant and information about dispossession was given to the court by the defendant. The plaintiff admitted in the learned trial court that defendant has been dispossessed from the suit land and the court directed the plaintif