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Judgment
This writ petition has been preferred under Article 227 of Constitution of India wherein the order dated 06.10.2018 passed in Title Suit No.66 of 2000 has been assailed by which the prayer for staying the proceeding of Title Suit No.66 of 2000 has been rejected.
Brief facts of the case of the petitioner, who is plaintiff in the suit, is that he has filed a probate case being Probate Case No.09/2007 before the court of District Judge for grant of probate certificate of the Will dated 25.11.1957 but the same was dismissed for default vide order dated 16.08.2017. The petitioner is claiming right and title on the strength of the Will dated 25.11.1957 and also by virtue of having continuous possession over the land for a long period. The petitioner, thereafter has filed a case pertaining to Letters of Administration Case No.2/2018 in the court of Principal District Judge, Hazaribag which has been admitted and notice has been issued to the parties and therefore an application has been filed before the trial court for staying of further proceeding of the Title Suit No.66 of 2000 being rejected. Being aggrieved with the said order, instant writ petition has been filed invoking the revisional jurisdiction conferred to this Court under Article 227 of Constitution of India.
Learned counsel for the petitioner has vehemently argued that since the Letters of Administration case has been admitted, although during the pendency of the writ petition, but in order to avoid the conflicting views, it would be just and proper to stay further proceeding in Title Suit No.66 of 2000 and also for the reason to avoid the multiplicity of proceeding. The trial court having not taken it into consideration has rejected the aforesaid application.
This Court, after hearing learned counsel for the petitioner and going across the impugned order has found that the petitioner has filed a suit for declaration of right and title being Title Suit No.66 of 2000 which he is claiming by virtue of his continuous possession and the Will dated 25.11.1957 for which a probate case has been filed by him being Probate Case No.09/2007 but the same has been dismissed for default vide order dated 16.08.2017 by the District Judge-III, Hazaribag. Thereafter he has filed one case being Letters of Administration Case No.02 of 2018 which is pending before the court of Principal District Judge, Hazaribag. The trial court, after appreciating the entire aspect of the matter and taking into consideration the scope of Section 10 of the Code of Civil Procedure which contemplates staying of trial of suit in the matter in issue is also directly and substantially in issue in a previously instituted suit, has found that the title suit having been filed in the year 2000 but the case pertaining to Letters of Administration has been filed in the year 2018, therefore has come to a finding by making the provision of Section 10 of the Code of Civil Procedure applicable that the Title Suit has been filed prior to the case pertaining to Letters of Administration.
The further ground has been taken into consideration by the trial court by considering the prayer of the petitioner for staying of the suit during pendency of the Letters of Administration case has come to a finding that the plaintiffs are claiming their right, title and interest and continuous possession over the suit land on the strength of Will dated 25.11.1957 allegedly executed in favour of plaintiff's father namely Amir Khan in the probate case/Letters of Administration case the propounder of the Will has to prove that the Will is genuine and the testator has executed the same in the sound state of mind. Therefore, question relating to title are not to be adjudicated upon in the probate or Letters of Administration case.
The question on the basis of pendency of the probate case/Letters of Administration Case fell for consideration before the Hon'ble Apex Court in the case of Binapani Kar Chowdhury Vrs. Satyabrata Basu reported in A.I.R. 2006 SC 2263 wherein the Hon'ble Apex Court while considering the scope of Section 10 of the Code of Civil Procedure has come to a finding that the suit for declaration of right and title may be disposed of but it is to be decreed with the clarification by the trial Court that the judgment and decree will come into effect only on production of the probate of the writ and till then the decree should be considered only as provisional and not to the binding effect.
In view of such reasoning the order has been passed.
This Court is also in agreement with the view that the suit is prior to the suit pertaining to Letters of Administration and therefore as per the provision of order 10 of Code of Civil Procedure which stipulates that the suit filed earlier not to be stayed. Here in the instant case the suit is of the year 2000 whereas the case pertaining to Letter of Administration is of the year 2018, hence not committed illegality.
This Court since exercising its power of revision conferred under Article 227 of Constitution of India, the scope having limited is only supposed to look into the legality of the finding and if the order passed by the subordinate court is without jurisdiction or beyond jurisdiction but the trial court after taking into consideration the settled position of law and the statutory provision has come to a conscious finding that the application filed by the petitioner under the provision of Section 10 of the Code of Civil Procedure is not to be considered and accordingly the same has been rejected.
In view of such reasoning, this Court sitting under Article 227 of Constitution of India declines to interfere with the impugned order.
Accordingly, this writ petition stands dismissed.