Patna High Court
Urmila Mishra vs Lal Babu Thakur on 31 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.766 of 2019
======================================================
1. Urmila Mishra W/o Late Birendra Mishra R/o Village and PO and PS Sathi
District-West Champaran, at present r/o Village Chilwaniya, P.S. Banjariya,
PO Motihari, Dist.-East Champaran
2. Ajay Kumar Mishra S/o Late Birendra Mishra R/o Village and PO and PS
Sathi District-West Champaran, at present r/o Village Chilwaniya, P.S.
Banjariya, PO Motihari, Dist.-East Champaran
3. Abhay Kumar Mishra S/o Late Birendra Mishra R/o Village and PO and PS
Sathi District-West Champaran, at present r/o Village Chilwaniya, P.S.
Banjariya, PO Motihari, Dist.-East Champaran
4. Sanjay Kumar Mishra S/o Late Birendra Mishra R/o Village and PO and PS
Sathi District-West Champaran, at present r/o Village Chilwaniya, P.S.
Banjariya, PO Motihari, Dist.-East Champaran
5. Ranjana Pandey W/o Nitish Pandey and D/o Late Birendra Mihsra R/o
Village-Rupahari,P.O. Kapurpadi, P.S. Sikarganj, Dist.-East Champaran
... ... Petitioner/s
Versus
1. Lal Babu Thakur S/o Late Singhasan Thakur R/o Village and P.S. Sathi,
Dist.-West Champaran.
2. Lalita Devi W/o Bechuj Thakur, D/o Late Singhashan Thakur R/o Village-
Matiyariya, P.O. Narkatiyaganj, P.S. Narkatyaganj, Dist.-West Champaran
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Chandra Kant, Advocate
Mr. Sudhanshu Prakash, Advocate
Mr. Navin Kumar, Advocate
For the Respondent/s : Mr. Shiv Kumar Dwivedy, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 31-07-2025
The instant civil miscellaneous petition has been filed
by the petitioners for setting aside the order dated 08.04.2019
passed by the learned Munsif, Narkatiyaganj in Title Suit No. 12
of 2015 whereby and whereunder the learned trial court has
allowed the petition filed by defendants/respondents under
Section 10 of the Code of Civil Procedure (for short 'the Code').
2. Briefly stated, the facts of the case, as flowing
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
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from the record, are that the father of the respondents filed Title
Suit No. 75 of 2007 against the husband of petitioner no.1 and
father of petitioner nos. 2 to 5 seeking preliminary decree of
account and assessment of amount payable to the defendant and
also for return of the mortgage deed of the plaintiff after taking
back mortgage amount and also for delivery of the mortgaged
property. Further, pursuant to the preliminary decree, passing of
a final decree was also prayed for payment of all accounted and
assessed amount by the plaintiff to the defendant. The original
plaintiff stated in his plaint that he owned and possessed
schedule 1 land of 3 katha 10 dhur and as he was in need of
money, he entered into negotiation with the defendant to
mortgage his schedule 1 land by executing a deed of Bainama
Basart Wapasi for a consideration amount of Rs. 30,000/- and
the defendant agreed to purchase the land with condition to
return the land to the plaintiff on demand on the payment of
price amount of Rs. 30,000/-. The plaintiff executed the deed on
07.11.2000
. The plaintiff further stated that as no time was fixed
for return of the land in the deed of Bainama Basart Wapasi, the
land was to be returned by the defendant to the plaintiff at any
time on demand by the plaintiff and payment of price money to
the plaintiff by the defendant. After execution of the deed of
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
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Bainama Basart Wapasi, the possession was delivered to the
defendant. Thus, the plaintiff claimed that in fact the deed of
Bainama Basart Wapasi is virtually a mortgage by conditional
sale and the deed is a mortgage deed. Thereafter, the plaintiff
claims he approached the defendant on 02.02.2007 and asked
him to accept the price amount and execute a registered return
deed and give back possession of the land as per terms and
conditions of the mortgage deed but the defendant refused to
accept the amount and execute a return deed to deliver back the
possession of the land to the plaintiff. The plaintiff sent a notice
to defendant by registered post on 05.02.2007 which was
returned undelivered. Another notice was sent through
registered post on 21.02.2007 to the address of the defendant
and this registered cover was also returned undelivered.
Thereafter, the plaintiff filed the present suit for the aforesaid
reliefs. The defendant appeared and filed his written statement
contesting the claim of the plaintiff. The defendant claimed that
the deed was not a deed of mortgage with conditional sale and it
was an outright sale deed. No time limit was given in the deed
for return so it is clear that the claim of the plaintiff about deed
of mortgage by conditional sale is not correct and he has got no
right to file the suit for redemption. Meanwhile, during
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pendency of Title Suit No. 75 of 2007, the plaintiff forcibly
dispossessed the defendant and information about dispossession
was given to the court by the defendant. The plaintiff admitted
in the learned trial court that defendant has been dispossessed
from the suit land and the court directed the plaintiff to inform
the court about market price of crops.
3. During the pendency of Title Suit No. 75 of 2007,
the petitioners of the present case, who are heirs/legal
representatives of original defendant of Title Suit No. 75 of
2007, filed Title Suit No. 12 of 2015 submitting, inter alia, that
Singhasan Thakur, the father of the defendants, executed a sale
deed in favour of Virendra Mishra, the husband and the father of
the plaintiffs, respectively and the father of the defendants
delivered the possession of said land to Virendra Mishra who
has been claiming the title and possession on the basis of sale
deed dated 07.11.2000. Since no time limit was prescribed in the
sale deed, when no action was taken by the father of the
defendants within the time limit, the claim over the suit property
became time barred. The plaintiffs/petitioners also claimed that
Singhasan Thakur got an ex parte decree in Title Suit No. 75 of
2007 and a Misc. Case No. 12 of 2000 was allowed on
09.11.2014 and ex parte decree passed in Title Suit No. 75 of
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2007 was set aside. The defendants/respondents started
disturbing the possession of the plaintiffs/petitioners and cut the
paddy crop from the land of the plaintiffs/petitioners on
09.11.2014 and took possession of the suit property. The
defendants admitted that they have taken possession over the
suit property and court proceeded for making valuation of the
paddy crop cut by the defendants. Thus, the plaintiffs/petitioners
claimed that they have been illegally dispossessed and the
defendants encroached upon their land and sought relief of
recovery of possession after declaring the possession of the
defendants on the suit land as illegal. The defendants appeared
in Title Suit No. 12 of 2015 and filed the written statement. In
their written statement, the defendants claimed that the plaintiffs
were never in possession of the land and it was in possession of
the defendants and the deed was mortgage deed and it was not a
sale deed. During pendency of the suit filed by the petitioners,
defendants/respondents filed a petition on 25.05.2016 under
Section 10 of the Code seeking stay in a proceeding of Title Suit
No. 12 of 2015 as earlier Title Suit No. 75 of 2007 was still
pending and the suit property and the parties were same. The
plaintiffs/petitioners filed a rejoinder contesting the claim of the
defendants/respondents. After hearing the parties, the learned
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trial court allowed the petition filed by the
defendants/respondents and stayed the Title Suit No. 12 of 2015
vide order dated 08.04.2019. The said order is under challenge
before this Court.
4. Learned counsel for the petitioners submitted that
the impugned order has been passed by the learned trial court is
a non-speaking and cryptic order and thus, the learned trial court
has failed to exercise the jurisdiction vested in it. The learned
trial court completely failed to see that ingredients of Section 10
of the Code are not available and for this reason subsequent suit
cannot be stayed. The learned trial court lost sight of the fact
that the subsequent suit has been filed under Section 6 of the
Specific Relief Act for recovery of possession of the land and
for declaring the possession of the defendants as illegal and
nothing more. The learned trial court ought to have considered
that when the petitioners were dispossessed by the respondents
then they have no remedy for recovery of possession in the first
suit which has been filed by the plaintiffs for redemption of
mortgage. Learned counsel further submitted that issues in the
two suits are different and therefore, petition under Section 10
of the Code cannot be entertained. Learned counsel further
submitted that in the first suit i.e., Title Suit No. 75 of 2007, the
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said suit has been filed by the respondents seeking redemption
of mortgage claiming the deed executed in favour of the
husband and the father of the petitioners to be a deed of
mortgage by conditional sale and not a deed of outright sale
with condition of re-purchase. The respondents have also sought
delivery of possession through the process of the court if the
petitioners failed to execute a registered deed of return. But
during pendency of their redemption suit, the respondents
dispossessed the petitioners and the petitioners were compelled
to file the suit under Section 6 of the Specific Relief Act which
provides for recovery of possession. Learned counsel thus
submitted that the issue involved in the subsequent suit is not
the issue directly and substantially the same in the first suit.
Even if the first suit is disposed of, it would not operate as res
judicata for the subsequent suit. If the suit is decided in favour
of the petitioners, there being no prayer or counter claim for
recovery of possession, petitioners would be compelled to file a
suit for recovery of possession. Moreover, proceeding under
Section 6 of the Specific Relief Act is independent of title and
the court has to only ascertain whether the plaintiff has been
illegally dispossessed and for this reason a summary proceeding
has been provided and the order has been made revisable. Even
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if a suit under Section 6 of the Specific Relief Act fails, the
plaintiff has option of filing another suit on the basis of title.
The learned counsel referred to the decision of the Hon’ble
Supreme Court in the case of I.T.C. Ltd vs Adarsh Coop.
Housing Soc. Ltd, reported in (2013) 10 SCC 169 in support of
his contention. Learned counsel next referred to the decision of
a Co-ordinate Bench of this Court in the case of Sampati Devi
& Ors. Vs. Lalita Devi & Ors., reported in 2016 (4) PLJR 507
wherein the learned Single Judge quoted the decision of the
Hon’ble Supreme Court in the case of National Institute of
Mental Health & Neuro Sciences vs. C. Parameshwara,
reported in AIR 2005 SC 242 : 2005 (2) SCC 256, wherein it
has been held that fundamental test to attract Section 10 of the
Code is whether on final decision being reached in the previous
suit, such decision would operate as res judicata in the
subsequent suit. Learned Single Judge held that Section 10 of
the Code would apply only if there is identity of the matter in
issue in both the suits, meaning thereby, the whole subject
matter in both the proceedings is identical. Learned counsel
further submitted that if the decision of the earlier suit would
not operate as res judicata in the subsequent suit, the learned
trial court fell in error in staying the subsequent suit. Thus, the
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learned counsel submitted that the impugned order is not
sustainable and the same needs to be set aside.
5. Learned counsel appearing on behalf of the
respondents vehemently contended that there is no infirmity in
the impugned order and there is no occasion for this Court to
interfere with the same. Learned counsel submitted that the
father of the respondents namely, Singhasan Thakur filed Title
Suit No. 75 of 2007 seeking a number of reliefs including
direction to the plaintiff to return the mortgage deed after taking
back the mortgage amount and also deliver to back the
possession of the mortgage property after executing a return
deed. The original defendant in that suit avoided service and the
matter proceeded ex parte and the judgment and decree were
passed by the learned trial court on 08.09.2009 and 12.09.2009,
respectively. The decree holder filed Final Decree Case No. 3 of
2009 before the court and meanwhile the judgment debtor filed
Misc. Case No. 12 of 2010 under Order 9 Rule 13 of the Code.
Learned counsel further submitted that during pendency of the
Misc. Case No. 12 of 2010, both the plaintiff and defendant of
original suit died and their legal heirs have been substituted.
During pendency of the case, the decree holder deposited the
consideration amount before the learned trial court and came in
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absolute possession of the land in question. On 16.05.2024, after
hearing the parties, the learned trial court allowed the Misc.
Case No. 12 of 2010. The learned counsel further submitted that
since the deed in question was a mortgage deed, the original
plaintiff was in possession and after the ex parte judgment, the
plaintiff deposited mortgage amount before the court and
thereafter came in possession as a title holder. Learned counsel
further submitted that if the Redemption Title Suit No. 75 of
2007 is decided in favour of the plaintiff, the same would
operate as res judicata against the claim of the defendants, the
petitioners herein and the learned trial court has rightly stayed
the subsequent suit. The main issue involved is whether the deed
in question is mortgage deed or sale deed. Learned counsel
further submitted that petitioners filed the present petition only
to linger the matter and prayed for imposition of cost on the
petitioners. Learned counsel further submitted that subject
matter is the same/identical, the suit property is same and the
parties are same, hence, all the ingredients of Section 10 of the
Code are present and, therefore, the impugned order is just and
proper and does not suffer from any illegality. Learned counsel,
however, while concluding the argument, submitted that if the
court is inclined to grant any relief to the petitioners after
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finding that the subsequent suit should not have been stayed,
this Court could order for amalgamation of both the suits and
order for their trial side by side. Learned counsel submitted that
the inherent power under Section 151 of the Code is available to
court to make such order for ends of justice to prevent the
misuse of the process of the court. In support of his contention,
learned counsel referred to the decision of the Hon’ble Supreme
Court in the case of Manohar Lal Chopra vs. Rai Bahadur
Rao Raja Seth Hiralal reported in AIR 1962 SC 527. Thus, the
learned counsel submitted that there is no infirmity in the
impugned order and the order needs no interference.
6. By way of reply, learned counsel for the petitioner
submitted that the plaintiff is the master of his own suit and still
he kept his suit pending for 11 years and the plaintiff cannot
blame the defendant for causing delay in the matter.
7. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
Section 10 of the Code reads as under:-
“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
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
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pending in the same or any other Court in 1
[India] have jurisdiction to grant the relief
claimed, or in any Court beyond the limits of
1 [India] established or continued by 2 [the
Central Government 3***.] and having like
jurisdiction, or before 4 [the Supreme
Court].”
8. In the case of National Institute of Mental Health
& Neuro Sciences vs. C. Parameshwara, (supra), in Paragraph
No. 8, the Hon’ble Supreme Court observed as under:
“8. The object underlying Section 10 is to prevent
Courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect
of the -same matter in issue. The object
underlying Section 10 is to avoid two parallel
trials on the same issue by two Courts and to
avoid recording of conflicting findings on issues
which are directly and substantially in issue in
previously instituted suit. The language of
Section 10 suggests that it is referable to a suit
instituted in the civil Court and it cannot apply to
proceedings of other nature instituted under any
other statute. The object of Section 10 is to
prevent Courts of concurrent jurisdiction from
simultaneously trying two parallel suits between
the same parties in respect of the same matter in
issue. The fundamental test to attract Section 10
is, whether on final decision being reached in the
previous suit, such decision would operate as res-
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
13/17judicata in the subsequent suit. Section 10
applies only in cases where the whole of the
subject matter in both the suits is identical. The
key words in Section 10 are “the matter in issue is
directly and substantially in issue” in the
previous instituted suit. The words “directly and
substantially in issue” are used in contra-
distinction to the words “incidentally or
collaterally in issue”. Therefore, Section 10
would apply only if there is identity of the matter
in issue in both the suits, meaning thereby, that
the whole of subject matter in both the
proceedings is identical.”
9. Now coming to the facts of the present case, the
first suit has been filed for redemption of mortgage, execution
of a return deed and for recovery of possession. Subsequent suit
i.e., Title Suit No.12 of 2015 is filed under Section 6 of the
Specific Relief Act for recovery of possession and for
declaration that the possession of the defendants is illegal.
10. Section 6 of the Specific Relief Act reads as
under:-
“6. Suit by person dispossessed of immovable
property.- (1) If any person is dispossessed
without his consent of immovable property
otherwise than in due course of law, he or any
person 3[through whom he has been in
possession or any person] claiming through
him may, by suit, recover possession thereof,
notwithstanding any other title that may be set
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
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(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date
of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or
decree passed in any suit instituted under this
section, nor shall any review of any such order
or decree be allowed.
(4) Nothing in this section shall bar any person
from suing to establish his title to such
property and to recover possession thereof.”
11. The Hon’ble Supreme Court in the case of I.T.C.
Ltd vs. Adarsh Coop. Housing Soc. Ltd, (supra) in paragraph
no.9 has held as under:-
“9. Section 6 of the Specific Relief Act 1963
under which provision of law the suit in
question was filed by the plaintiff-respondent
is pari-materia with Section 9 of the Act of
1877. A bare reading of the provisions
contained in Section 6 of the Act of 1963
would go to show that a person who has been
illegally dispossessed of his immovable
property may himself or through any person
claiming through him recover such possession
by filing a suit. In such a suit, the entitlement
of the plaintiff to recover possession of
property from which he claims to have been
illegally dispossessed has to be adjudicated
independently of the question of title that may
be set up by the defendant in such a suit. In
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question that has to be determined by the
Court is whether the plaintiff was in
possession of the disputed property and he
had been illegally dispossessed therefrom on
any date within six months prior to the filing
of the suit. This is because Section 6 (2)
prescribes a period of six months from the
date of dispossession as the outer limit for
filing of a suit. As the question of possession
and illegal dispossession therefrom is the only
issue germane to a suit under Section 6, a
proceeding thereunder, naturally, would
partake the character of a summary
proceeding against which the remedy by way
of appeal or review has been specifically
excluded by sub-section 3 of Section 6. Sub-
Section (4) also makes it clear that an
unsuccessful litigant in a suit under Section 6
would have the option of filing a fresh suit for
recovery of possession on the basis of title, if
any.”
12. Position of law has been made clear by the
Hon’ble Supreme Court that when a suit filed under Section 6 of
the Specific Relief Act, only inquiry which is made is to see
whether the plaintiff has been dispossessed and irrespective of
claim of title, the possession is to be restored to the plaintiff if
he had earlier been in possession. Further another avenue is
open to the plaintiff even if a suit fails under Section 6 of the
Patna High Court C.Misc. No.766 of 2019 dt. 31-07-2025
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Specific Relief Act and if the plaintiff has his claim on the suit
property on the ground of title, a fresh suit can be instituted by
such plaintiff. The proceeding under Section 6 of the Specific
Relief Act is summary in nature and the order passed is
revisable. Therefore, it is evident that proceeding under Section
6 of the Specific Relief Act is independent of right and title. No
doubt if the redemption suit is disposed of in favour of the
plaintiff, the subsequent claim of the petitioners in Title Suit No.
12 of 2015 would automatically fail and on this ground the stay
on proceeding of subsequent suit can be said to be correct.
However, if the first suit is disposed of in favour of the
defendants/petitioners, they would still be required to institute a
suit to get the possession of the suit property. Moreover, the
claim of the petitioners that they have been illegally
dispossessed is also to be adjudicated as is apparent from the
plaint of Title Suit No. 75 of 2007 that the plaintiff of that suit,
the respondents herein, have sought recovery of possession and
now they claim that after the ex parte decree was passed, they
lawfully came into possession, a fact which require
consideration by the Court.
13. In the light of aforesaid facts and circumstances,
the subject matter in issue in both the suits could not be said to
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be same. Applying the law to the facts of the case in the light of
decisions of the Hon’ble Supreme Court in the cases of I.T.C.
Ltd vs. Adarsh Coop. Housing Soc. Ltd (supra) and National
Institute of Mental Health & Neuro Sciences (supra), I am of
the considered opinion that the learned trial court committed an
error of jurisdiction in staying the Title Suit No. 12 of 2015.
Therefore, the impugned order dated 08.04.2019 passed by
learned Munsif, Narkatiyaganj in Title Suit No. 12 of 2015 is set
aside.
14. Accordingly, the present petition stands allowed.
15. Since the parties and the suit property are same
and therefore, for the convenience of the parties and to facilitate
smooth conduct of the cases, the learned Principal District
Judge, Bettiah, West Champaran is requested to ensure that both
the suits are entrusted to the same court and the court so
entrusted with the matter would conduct the proceeding in both
the suits side by side and dispose them of at the earliest.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR AFR CAV DATE 04.07.2025 Uploading Date 31.07.2025 Transmission Date NA
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