' The only question requiring consideration in this case is whether section 10 of the C.P.C. Was applicable to the suit filed by the respondents for recovery of possession, damages and mesne profits of the property in dispute.
3. The copy of the plaint of the suit of the respondents has been placed on the record. In paragraph 12 of which it was admitted that the present petitioner/defendant instituted a suit for administration of the property left by his father and the property in dispute was included in the said suit alleging that the same was also owned by deceased father and as such owned by his legal heirs. This suit was however dismissed as submitted by learned counsel for both the parties. An appeal against judgment and decree of the learned trial Court is pending in this Court which has been admitted. The said suit of administration was admittedly filed earlier by the petitioner on which the respondent was impleaded as one of the defendants and four sisters were also impleaded as defendants.
3. The learned trial Court through the impugned order dated 20-7-1988 dismissed the application of the petitioner made under section 10 of the C.P.C. Seeking stay of the suit of the respondent from which this revision petition has arisen being a suit filed later in time.
4. In view of these admitted facts, it is manifest that the property in dispute the possession of which is being claimed by the respondent as also the manse profits and damages for use and occupation thereof is subject-matter of the previously instituted suit between the parties in the present suit alongwith the four sisters in which it has to be decided whether the property in dispute was inherited by the parties in the suit alongwith the sisters as heirs and owned by the deceased father of the parties or it was exclusively owned by the respondent/plaintiffs. As the appeal arising from the said suit having been admitted and is pending in this Court, the same very issue which has arisen for determination in the present suit filed by the respondent therefore, in my view section 10 of the C.P.C. Was fully applicable. No matter that in the previously instituted suit apart from the parties in the present suit the sisters were also joined as defendants. Any finding recorded in the said previously instituted suit would certainly operate as res judicata between the parties in this suit regarding the property in dispute and its ownership.
5. The learned counsel for the respondent maintained that in the present suit which is though instituted later in time, can proceed for determination of the question of recovery of mesne profits and damages of the property which matters are not directly and substantially in issue in the previously instituted suit of administration of property therefore to that extent the learned trial Court should be allowed to proceed with the trial of the suit. I am afraid the argument in my opinion is plainly unsound. The claim of the respondent for recovery of manse profits for use and occupation of the property by the present petitioner and for recovery of damages are based on his alleged right of ownership of the property exclusively therefore, the said reliefs cannot be treated as independent from his claim of ownership. To amplify the matter it can safely be said that the reliefs of manse profits and damages are dependent on the determination of the question of title as alleged by the petitioner in the property in dispute and cannot be granted till such time the said question is first decided. The argument is therefore' repelled.
6. Learned counsel for the respondent faintly argued that in the previously instituted suit for administration of property apart from the two brothers who are party in this suit, four sisters are also defendants therefore the previously instituted suit cannot be held to be between the same parties. This submission too has no force. So far as the parties in the present suit are concerned they are party in the previously instituted suit and question of title of the property is an issue between the plaintiff and the defendant in both the suits and the applicability of Section 10 of C.P.C.
Is not adversely affected even if in that suit apart from the parties in the present suit the sisters have also been impleaded as defendants. The criteria in my view is that if the finding on the question of title given in the previously instituted suit would operate as res judicata in the present suit, the present suit would be liable to be stayed under section 10, C.P.C. Applying this principle I am satisfied that the finding on the question of title of the property between the parties in the present suit if recorded in the said administration suit against any of the parties the same would operate as res judicata therefore, section 10 of the C.P.C. Was fully applicable and the erroneous view taken by the C learned trial Court as a result of which the proceedings with the trial of the suit though the same is debarred under section 10 as such the learned trial Court has decided to exercise jurisdiction not vested in it under the law to proceed with the trial of the suit.
7. For the foregoing reasons this revision petition is accepted. The impugned order of the learned trial Court is set aside. It is ordered that the proceedings in the suit shall remain stayed till the disposal of the aforementioned previously instituted suit of administration pending in appeal. The parties are left to bear their own costs.