- (1.) S. N. Srivastava, J. This writ petition is directed against the order dated 18-12-2001 (Annexure 7 to the writ petition) and also the order dated 29-11-2006 passed by the Revisional Court. By these two orders, it would appear, the application under Section 10 of the C. P. C. for staying the suit under Section 176 of the U. P. Z. A. and L. R. Act was dismissed.
(2.) A brief recapitulation of necessary facts is that the plaintiff Mohini and Hansraji instituted suit for partition of the residential house and Sahan in the Civil Court which was numbered as O. S. No. 294 of 1982. The suit aforesaid culminated in being decreed and the matter is now pending before the High Court in second appeal. It would further appear that Hans Raji Opposite party No. 3 filed another suit under Section 176 of the U. P. Z. A. and L. R. Act before the Sub-Divisional Officer Saghri District Azamgarh for partition of the agricultural property in the year 1982. An application was moved under Section 10 C. P. C. for staying further proceeding in the suit on the ground that the matter is lingering in second appeal arising out of civil suit for partition of the residential house and Sahan. The application ended up in being rejected vide order dated 29-11-2001. A revision preferred against the same was also dismissed vide order dated 18-12-2001. Learned Counsel for the petitioner canvassed that in both the suits i. e. one filed in Civil Court and the other in revisional Court, the plaintiff claimed 1/3rd share and hence the matter at issue in both the suits being the same, the suit instituted under Section 176 before the S. D. O. cannot proceed. He further urged that in view of pleading of the parties and claim made therein of 1/3rd share, the matter is substantially and materially the same and the impugned order is apt to be quashed and suit instituted under Section 176 be stayed till final disposal of the matter in second appeal pending in this Court. Per contra, learned Counsel for the Opposite parties contended that the subject matter of dispute as well as matter at issue in both the suits are altogether different. He further contended that in civil suit, the property involved was the residential house and Sahan while in revenue suit, the property is the agricultural land which is governed by different law and the suit cognizable by revenue Court and not by civil Court and therefore, the matter is substantially and materially different and therefore, the impugned order was rightly passed by the Courts below. He further contended that the interim order obtained by the petitioner is apt to be set aside and the suit which is pending for the last 24 years may be directed to be disposed of within a short period. I have considered the submissions made across the bar. Before coming to grips with the submissions, it would be appropriate to quote below Section 10 of the C. P. C which is applicable by virtue of Section 176 of the U. P. Z. A. and L. R. Act. "10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court. Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action. "
(3.) IT would crystallize from the above section that requirements of Section 10 of the C. P. C. are : (1) The Court must have jurisdiction to proceed, (2) the matter in issue is also directly or substantially in issue, and (3) the parties are litigating under the same title where such suit is pending in the same or any other Court. Reverting to the facts of the present case, it would appear that the case in hand does not satisfy any of the conditions postulated in Section 10 of the C. P. C. In so far as suit instituted for partition of residential house and Sahan is concerned, it brooks no dispute that it is only the civil Court which is vested with the jurisdiction to adjudicate upon the suit for partition or any other matter and the revenue Court could not entertain any such suit. By this reckoning, there is no difficulty in holding that the subject matter of both the suits are distinct and they are also governed by two different laws. To be precise, the suit for partition arising out of agricultural land is cognizable under the U. P. Z. A. and L. R. Act while the suit for partition relating to partition of residential property and Sahan is cognizable by civil Court and is governed by Hindu Law and Transfer of Property Act and other laws applicable to it. Yet another aspect to be considered is the application of Section 10 C. P. C. One of the factor necessary for application of Section 10 C. P. C. is that both the Courts should have jurisdiction to decide the matter in issue about the property involved in different suits. In the present case, only revenue Court has jurisdiction to entertain the suit for partition under Section 176 of the U. P. Z. A. and L. R. Act and civil Court has no jurisdiction regard being had to Section 331 of the U. P. Z. A. and L. R. Act which excludes the jurisdiction of the civil Courts. The above discussion also lends credence to the view that the subject matter of the two suits are distinct from each other and they are governed by different laws and by this reckoning, Section 10 of the C. P. C. is rendered inapplicable to the present case. In the facts and circumstances discussed above, this Court is of the view that the impugned orders were rightly passed and therefore, the writ petition being devoid of merit is accordingly dismissed.;