Asha Arora, J. - (1.) This revisional application at the instance of the plaintiff/petitioner is directed against an order dated February 15, 2007 passed by the learned Civil Judge (Senior Division), Jhargram in Title Suit No. 1 of 2001 whereby an application under section 10 of the Code of Civil Procedure filed by the defendant nos. 4 to 6 seeking stay of the aforesaid suit till the disposal of First Appeal being F.A No. 2 of 2003 was allowed.
(2.) The backdrop of the matter may be synopsized as follows: The plaintiff/petitioner previously filed a suit for partition being Title Suit No. 49 of 1994 against the opposite parties/defendants in respect of the same property which was dismissed on contest by the trial court with the following observation: So, it appears that defendants failed to discharge the onus of proving that plaintiff understood the contents of the deeds and there was independent legal advice to her. But even if this fact remains unproved by defendants, plaintiff cannot get the decree as prayed for, because, there is no prayer for declaration of the two deeds as null and void. This court can not award a decree for partition keeping aside the other relief on which the relief sought for is contingent. In the circumstances, I am of the opinion that the suit fails. Pursuant to the dismissal of Title Suit No. 49 of 1994 the plaintiff filed another suit being Title Suit No. 1 of 2001 seeking the following reliefs: (a) For a preliminary decree of partition of her 27/80 share in the property described in the schedule below; (b) for final decree of partition by appointing Advocate commissioner; (c) for declaration that the deeds described in Schedules- 'B' and 'C' of the plaint are null and void and the same are not binding on the plaintiff and also for cancellation of the decree of the said suit; (d) for costs and for other legal and equitable reliefs . After the second suit was filed by the plaintiff, the defendants/opposite parties preferred an appeal against the observation of the trial court in the judgement rendered in Title Suit No. 49 of 1994. The said appeal being F.A No. 2 of 2003 is pending before a Division Bench of this Court. On the basis of an application under section 10 CPC filed by the defendant nos. 4 to 6 the trial court stayed the subsequent suit being Title Suit No. 1 of 2001.
(3.) Relying upon the case of Aspi Jal and Another v. Khushroo Rustom Dadyburjor reported in AIR 2013 Supreme Court 1712 and the decision reported in AIR 2005 Supreme Court 242 in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara , learned counsel for the petitioner strenuously argued that the matter in issue in the subsequent suit was not directly and substantially in issue in the previous suit. Leading this Court through the plaint of Title Suit No. 49 of 1994 and the judgement of the trial court in the aforesaid suit, Mr Bhakat submitted that though the alleged sale deeds have been assailed as false and fabricated in paragraph 8 of the plaint of the earlier suit, the matter not being in issue in the said suit did not fall for consideration before the trial court. Further contention on behalf of the petitioner is that no relief was sought or granted in respect of the alleged deeds and the observation made by the trial Court regarding the matter is merely obiter dictum which is not binding. Therefore the provision of section 10 of the Code of Civil Procedure is not applicable to the facts of the case.;