1. This original petition is filed by the supplemental 3rd defendant in O.S. No. 66 of 2015 on the files of the Munsiff-Magistrate Court, Pattambi. The petitioner is a Limited Liability Partnership Firm. The petitioner states that it is the bona fide purchaser of 7 cents of land in Survey No. 172/8 of Pattithara Village, purchased from the 2nd defendant in the said suit as per sale deed No.2317 of 2016 dated 20.06.2016 of Thrithala Sub-Registry.

2. The 2nd defendant in O.S. No. 66 of 2015, namely Sri Raghavan, filed O.S. No. 246 of 2014 before the Munsiff–Magistrate Court, Pattambi for a decree of permanent prohibitory injunction and mandatory injunction. According to Sri Raghavan, the plaint ‘A’ schedule property in O.S. No. 246 of 2014 forms part of Item No. 14 in Registered Partition Deed No. 699/1976 of SRO, Thrithala, which was set apart to Lakshmikutty Amma, his mother. After the sale of a portion of the property, the remaining extent of 12½ cents was gifted to him by his mother as per Gift Deed No. 239/2014 of the Thrithala Sub-Registry. The plaint ‘A’ schedule was later amended showing the description as 5 ½ cents, as 7 cents out of the property were sold to the petitioner Firm. The northern side of plaint ‘A’ schedule property belongs to Sree Chamundikavu Temple. It was contended that, while constructing a compound wall in the temple, the defendants trespassed into the plaint ‘A’ schedule property and constructed a trench, which is described as the plaint ‘B’ schedule. Hence the suit was filed. Sree Chamundikavu Kshethra Committee and its Secretary were the defendants in the suit. The defendants contended that the partition deed relied on by the plaintiff, Sri.Raghavan is a fabricated one and disputed the extent of the property covered by the partition deed and denied the title of the mother of the plaintiff and contended that plaint ‘A’ and ‘B’ schedule properties belonged to the Temple. The learned Munsiff, by Ext.P5 judgment, held that there is defect in the title of Sri.Raghavan and the whole property in Survey No.172/8 belonged to Chamminikkavu Devaswom, Ooralar and as such is a temple property and Sri.Raghavan has not proved his possession over plaint ‘A’ and ‘B’ schedule properties and dismissed the suit. Ext.P6 is the copy of the decree. Sri.Raghavan preferred an appeal against Ext.P5 judgment as A.S. No.10 of 2017 before the Additional District Judge’s Court, Ottapalam which was dismissed confirming Ext.P5. He has preferred RSA No.788 of 2022 before this Court and the same is pending.

3. During the pendency of O.S. No.246 of 2014, Chamminnikkavu Sree Chamundikkavu Bhagavathi Temple Idol represented by next friend and devotee Sri. P.P.Saseendran filed O.S. No.66 of 2015 seeking injunction restraining one Balakrishnan Nair and the aforesaid Raghavan, defendants 1 and 2 and their agents from trespassing or constructing boundary walls or altering the nature of the property or doing any acts diminishing the value of the plaint schedule property. The plaint schedule property has been described as 70 cents of land in Survey No.172/8 known as ‘Vediparambu’ belonging to the temple. Ext.P2 is the copy of the plaint and Ext.P3 is the written statement filed by the 1st defendant, Balakrishnan Nair and Ext.P3(a) is the written statement filed by the aforesaid Raghavan, the 2nd defendant. Contending that 7 cents out of the plaint schedule property were sold by Sri.Raghavan to the petitioner Firm during the pendency of the Suit, the petitioner was impleaded as supplemental 3rd defendant in O.S. No.66 of 2015. Ext.P4 is the written statement filed by the petitioner in the said suit.

4. According to the petitioner, the issue to be resolved in both the suits, namely, O.S. No.246 of 2014 and O.S. No.66 of 2015 is with respect to the right, title and possession over the property in Survey No.172/8 of Pattithara Village. Therefore, the petitioner filed I.A. No.1141 of 2023 (Ext.P8) in O.S. No.66 of 2015 under Section 10 of the Code of Civil Procedure (CPC) seeking to stay the suit till the disposal of RSA No.788 of 2022. The 1st respondent/plaintiff filed Ext.P9 objection to Ext.P8 application. The learned Munsiff dismissed Ext.P8 application by Ext.P10 order and the relevant portion thereof reads thus:

                   “3. Objection was filed by respondent. On closely perusing the records produced before me and perusing as to the parties in the previously instituted suit with the present suit, I found that the property in dispute is not the same with the previous suit and the petitioner is not the same party litigating in the previous suit. At this juncture, I have no hesitation on relying the verdict placed by the respondent, which is pronounced by Hon'ble Supreme Court in CK Prasad vs. Gopala Gowda 2013 KHC 4271, wherein it was held that the provisions u/s 10 will not apply where few of the matters in issue are common instead will apply only when the entire subject matter in controversy is same. In the instant matter neither the parties are same nor the subject matter is exactly the same. Hence Sec. 10 CPC will not be applied in this matter so as to stay the trial. Hence, IA dismissed”

Challenging Ext.P10, this original petition is preferred.

5. It is contended by the petitioner that the right, title and possession over the property in Survey No.172/8 of Pattithara Village is directly and substantially the same in both O.S. No.66 of 2015 and RSA No.788 of 2022. According to the petitioner, proceeding with O.S. No. 66 of 2015 while RSA No. 788 of 2022 is pending would lead to parallel proceedings on the same fundamental question, resulting in conflicting judgments and therefore, the trial of O.S. No.66 of 2015 has to be stayed.

6. Heard Smt.Meena A, the learned counsel for the petitioner, Sri.T.Sethumadhavan, the learned Senior Counsel for the 4th respondent assisted by Smt.Deepa Narayanan, and Smt.R. Ranjanie, the learned Standing Counsel for Malabar Devaswom Board.

7. Smt.Meena submits that the issue involved in O.S. No.66 of 2015 is whether the entire property in Survey No.172/8 of Pattithara Village belongs to the temple. The learned Munsiff, by Ext.P5 judgment has already entered a finding that the whole property in Survey No.172/8 belonged to the Chamminikkavu Devaswom, Ooralar and as such it is a temple property. The petitioner is an assignee of the plaintiff in the said suit. RSA No.788 of 2022 preferred against Ext.P5 judgment is pending before this Court. It is contended that the matter in issue in O.S. No.66 of 2015 is directly and substantially in issue with O.S. No.246 of 2014, the previous suit and therefore, the learned Munsiff ought to have stayed the trial of O.S. No.66 of 2015 pending disposal of RSA No.788 of 2022. It is further contended that the learned Munsiff has misconstrued the provisions of Section 10 of CPC.

8. Sri.T. Sethumadhavan, the learned Senior Counsel for the 4th respondent submits that, in the facts and circumstances of the case, the ingredients of Section 10 of CPC are not attracted for stay of proceedings in O.S. No.66 of 2015. It is contended that the petitioner was not a party in O.S. No.246 of 2014. The petitioner is not a party in RSA No.788 of 2022 as well. The plaintiff as well as defendants 1, 4 and 5 in O.S. No.66 of 2015 were not parties in O.S. No.246 of 2014. Therefore, it is contended that the parties in the previously instituted suit and subsequently instituted suit are not the same. The petitioner is only the assignee of the plaintiff in the previous suit and cannot be said to be litigating under the same title. The extent of the plaint ‘A’ schedule property in O.S. No. 246 of 2014, as amended, is only 5½ cents, whereas the plaint schedule property in O.S. No. 66 of 2015 is 70 cents. Sri.T.Sedhumadhavan refers to paragraph 12 of the written statement filed by the petitioner Firm in O.S. No.66 of 2015, wherein it is specifically stated that the 7 cents of property purchased by the Firm from Raghavan as per Sale Deed No.2317/2016 does not form part of the plaint schedule property in the said suit and the property is not temple property. It is therefore contended that the petitioner cannot take a contention that the issue of right, title and possession over the property in Survey No.172/8 is directly and substantially the same in O.S. No.66 of 2015 and RSA No.788 of 2022. The title set out is totally different. Sri. Sethumadhavan further contends that Ext.P5 judgment is dated 28.02.2017 and the petitioner purchased the 7 cents of land from Raghavan as per sale deed dated 20.06.2016, during the pendency of O.S. No.246 of 2014. O.S.No. 66 of 2015 was instituted during the pendency of O.S. No.246 of 2014. The first appeal against Ext.P5 judgment was dismissed as per judgment and decree dated 30.08.2022. The petitioner has not sought for stay of the subsequent suit during the pendency of any of the above proceedings and therefore, Ext.P8 application lacks bona fides. It is further contended that the cause of action in both suits is different. The learned Senior Counsel further submits that since O.S. No. 246 of 2014 has been finally disposed of, Section 10 of CPC will not apply as Section 10 applies only if previously instituted suit is pending.

9. Smt.Ranjanie, the learned Standing Counsel for Malabar Devaswom Board submits that the Board was not a party in the previously instituted suit and the provisions of Section 10 of CPC are not attracted to the facts of the case.

10. Section 10 of CPC reads as follows:

                   “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 under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government [ ***] and having like jurisdiction, or before [the Supreme Court].

                   Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action.”

11. The conditions for application of Section 10 CPC are as follows:

                   i. There must be two suits, one filed earlier and another filed later.

                   ii. The matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit.

                   iii. The suits must be between the same parties or parties claiming under them, and they must be litigating under the same title.

                   iv. The previously instituted suit must be pending.

                   v. The court in which the previously instituted suit is pending has jurisdiction to grant the relief claimed in the subsequently instituted suit.

12. The foremost objection of Sri.Sethumadhavan is that the previously instituted suit is not pending and therefore, Section 10 is not attracted. An application under Section 10 is to be presented before the court where the subsequent suit is pending. The section specifies that the trial of the subsequently instituted suit be stayed until the previously instituted suit is decided. In the present case, the previously instituted suit has already been decided and the first appeal arising out of the same was dismissed and the Regular Second Appeal is pending before this Court. Since an appeal is a continuation of the suit, the pendency of the Regular Second Appeal can be treated as pendency of the suit. Therefore, the said contention of the learned Senior Counsel is only to be rejected.

13. The next question to be considered is whether the matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit. O.S. No. 246 of 2014 was filed by Sri Raghavan seeking a decree for permanent prohibitory and mandatory injunctions, contending that the defendants, while constructing the temple’s compound wall, trespassed into the plaint ‘A’ schedule property and constructed a trench, which is described as the plaint ‘B’ schedule property. The trial court, inter alia, framed the following issues for consideration:

                   1. Whether the plaintiff is having valid title and possession over plaint A schedule property?

                   2. Whether the A schedule or any portion of it is temple property as alleged?

The trial court by Ext. P5 judgment found that the plaintiff has not proved his possession over ‘A’ and ‘B’ schedule properties and there is defect in the title of the plaintiff and it is not sure as to how the property in Survey No.172/8 came to plaintiff’s predecessor. The court also held that the whole property in Survey No.172/8 belonged to Chamminikkavu Devaswom, Ooralar and as such, is temple property.

14. The issue to be resolved in O.S. No. 66 of 2015 is whether Chamminnikkavu Sree Chamundikkavu Bhagavathi Temple is having possession and ownership over the 70 cents of property in Survey No.172/8. It is contended therein that Raghavan has no right over the plaint schedule property, that Sale Deed No. 2317/16 executed in favour of the petitioner is void, and that the petitioner has acquired no right, title, or possession in respect of the property covered by the sale deed. There is identity of the matter in issue in both the suits. The matter in issue in O.S. No. 66 of 2015 is directly and substantially in issue in O.S. No.246 of 2014. Raghavan is the plaintiff in O.S. No.246 of 2014 and the 2nd defendant in O.S. No. 66 of 2015. The temple is a party to both suits, though represented by different persons. The petitioner has purchased an extent of 7 cents of land from Raghavan in Survey No. 172/8. The learned Munsiff in Ext.P5 judgment has held that the whole property in Survey No.172/8 belonged to Chamminikkavu Devaswom and is temple property. The petitioner is the vendee of Raghavan. The finding in O.S. No. 246 of 2014 is that the title of Raghavan is defective. Consequently, he could not convey title to the petitioner in respect of the 7 cents of land.The said finding will impact the petitioner’s claim, as well as that of Raghavan in O.S. No. 66 of 2015, with respect to the property in Survey No. 172/8.

15. The learned Munsiff dismissed Ext. P8 application by Ext. P10 order, stating that the property in dispute in the subsequent suit is not the same as in the previous suit, and that the petitioner is not a party to the earlier suit. It is to be noted that there is identity of matter in issue in both the suits. Question of title is in issue in both the cases. The plaintiff in O.S. No. 246 of 2014 is the 2nd defendant in O.S. No. 66 of 2015. The temple is the plaintiff in O.S. No. 66 of 2015 and the 1st defendant in O.S. No.246 of 2014. The vendee of the plaintiff in O.S. No. 246 of 2014, who is the supplementary 3rd defendant in O.S. No. 66 of 2015, is a party claiming under the plaintiff and is litigating under the same title. They are the effective parties who seek relief or against whom relief is sought, and it is between them that the matter substantially in issue in both cases arises. Therefore, the finding of the learned Munsiff in Ext. P10 that the parties are not the same and the subject matter is not exactly the same, and hence Section 10 CPC will not apply, cannot be sustained.

16. As the contentions in both suits are interconnected, a joint trial could have been conducted. The object of Section 10 CPC is to prevent courts of concurrent jurisdiction from adjudicating upon parallel litigations between the same parties having the same matter in issue with a view to avoiding conflict of decisions. Since the Regular Second Appeal filed against the previously instituted suit (O.S. No. 246 of 2014) is pending, to avoid conflict of decision it is only just and proper to stay the proceedings in O.S. No.66 of 2015 till the disposal of the Regular Second Appeal.

Accordingly, Ext.P10 order is set aside and Ext.P8 application is allowed and the proceedings in O.S. No. 66 of 2015 will stand stayed till the disposal of RSA No.788 of 2022.

The original petition is allowed.