1991 PLP 1298 (CLC)

Noor Muhammad Sheikh f9r Petitioner. Syed Najam‑ul‑Hassan Kazi for Respondent. Date of hearing: 26th February, 1991. 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, damag6s and mesne profits of the property in dispute.

3. The copy of 1he pl4int 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 riled 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 mesne 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 whidth 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 mesne profits for use and Occupation of the property by the present petitioner and for recovery of damage 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 mesne 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