M.M. Punchhi, J. - (1.) ADMITTED and disposed of simultaneously. Ved Singh Respondent first approached the Civil Court setting up a claim to a vacant piece of land measuring 2272 square yards, claimed by him to be encircled by a compound wall, situate within the municipal limits of Jhajjar, setting up title to 3/4th thereof as its owner and the remaining 1/4th on ripening ownership by adverse possession The suit is directed against Devi Ram Sharma, the present Petitioner, for he is said to have purchased 1/4th share thereof from the predecessors -in -interest Hawa Singh and Zile Singh sons of Bhartu vide registered sale deed dated January 30, 1984. After the filing of the first suit, Devi Ram Sharma Petitioner filed a suit before the Civil Court claiming partition of the land. This suit is directed against Ved Singh Defendant and his sister Phulo as a co -Defendant.
(2.) AN application was made by Ved Singh Respondent before Shri v. P Bishnoi Sub Judge Ist Class Jhejjar, the court seisin of both the suits, praying that the later suit filed by the Petitioner be stayed in terms of Section 10 of the Code of Civil Procedure, as according to him. the matter in issue in the later suit was directly and substantially in issue in the previously instituted suit The trial Judge agreeing with his contention stayed the suit vide order dated November 7, 1985, which is now sought to be revised at the instance of the Petitioner The order per se is in any case materially irregular ; In the previously instituted suit, the matter in issue is whether the Plaintiff Ved Singh in that case has become owner of 1/4th share of the plot by adverse possession. The matter directly and substantially in issue in the subsequent suit is whether the property is partible and on what shares. It is on the determination of shares that a mode of partition would have to be solved to put the parties in respective possessions of shares allotted to them In other words, in the later suit first a preliminary decree would require to be passed and then followed by a final decree It is obvious that the previously instituted suit and the suit instituted later have nothing in common except that the property is common and property is not "matter" in issue I see no reason why the two suits cannot simultaneously be allowed to proceed in case Ved Singh Petitioner is successful in proving that he has become owner to the extent of 1/4th share of the plot by adverse possession there and then the suit of Devi Ram Sharma Petitioner would merit dismissal But in case Ved Singh fails to establish his becoming owner to that extent by adverse possession, the necessary sequel would be that the suit of Devi Ram Sharma, the present Petitioner, would get decreed for partition for his share, to that extent by passing a preliminary decree. Thus, It is my considered view that Section 10 of the Code of Civil Procedure was not attracted to the case and even if it was, to some extent by stretching of its language, interest of justice required, on the peculiar facts of this case, that both the suits be proceeded together upto the stage of the preliminary decree in the later instituted suit.
(3.) MR Balhara, learned Counsel for the Respondents, has contended that no interference need be made in the impugned order on the strength of M/s Jagan Nath Jagdish Lal v. Messers Piara Mal Gobind Ram Sachdev, 1979 P.L.J.231, as according to him, there is no material irregularity. That there is one has already been spelled out in the earlier paragraph. Secondly, it has been contended by him on the strength of Parmal and Ors. v. Har Kaur, (1980)82 P.L.R.26. that the instant was a case for the applicability of Section 10 of the Code of Civil Procedure That too has been answered in the earlier paragraph. The objections raised are overruled;