S.J. Mukhopadhaya, J.

1. This revision application has been preferred by Defendant-Petitioner against the order dated 24th May, 1995 passed by learned Munsif, Nalanda in Eviction Suit No. 9 of 1992. By the impugned order, the petition under Section 10 Code of Civil Procedure preferred by the Defendant-Petitioner has been rejected.

2. It appears that Basant Sao had three sons, namely, Lakhan Lal, Raj Kumar Prasad and Shyam Nandan Prasad. Plaintiff-Opposite party is daughter-in-law of Basant Sao, being wife of Shyam Nandan Prasad. Lakhan Lal, brother of the Petitioner, filed Title Suit No. 27/88 for partition of the suit land. Basant Sao, Shyam Nandan Prasad, the husband of the Plaintiff-opposite party, as well as this Petitioner were also parties to the said suit. Said Basant Sao contested the aforesaid Title Suit No. 27/88 and denied any share of Lakhan Lal or other sons, including the Petitioner. The Petitioner, who was Defendant in the aforesaid suit supported the case of the said Plaintiff Lakhan Lal. During the tendency of the said suit, the suit property was gifted by Basant Sao in favour of Plaintiff-opposite party by one deed of gift dated 2nd June, 1989. Title suit No. 27/88 aforesaid was ultimately dismissed on 30th September, 1994. A finding relating to title was given in favour of Basant Sao. The Defendant-Petitioner and Ors. have already preferred appeals (First Appeal Nos. 793/94 and 10/95) before this Court.

3. In the meantime, during the tendency of the aforesaid suit, the Plaintiff-opposite party filed Eviction Suit No. 9/92 made claim as landlord on the basis of deed of gift dated 2nd June, 1989. This Petitioner, brother-in-law of the Plaintiff, was made Defendant in the eviction suit. According to the Plaintiff, she being the landlord and Defendant being the tenant and Defendant having failed to pay arrears of rent was liable for eviction. Further prayer was made for arrears of rent.

4. The Defendant-Petitioner appeared in the Eviction Suit No. 9/92 and filed written statement. He denied the claim of the Plaintiff. Subsequently, a petition under Section 10 Code of Civil Procedure was filed by the Defendant-Petitioner for stay of the eviction suit on the ground that one of the issue is common in First Appeals No. 793/94 and 10/95. Such petition under Section 10 Code of Civil Procedure filed by the Defendant-Petitioner has been rejected by the impugned order.

5. The counsel for the Petitioner submitted that there being a disputed question of title, which is one of the issue in the eviction suit, being common issue with the first appeals aforesaid, the Court below should have allowed the petition under Section 10 Code of Civil Procedure. He relied on the decision of the Bombay High Court in the case of Jai Hind Iron Mart v. Tulsiram Bhagwandas (: A.I.R. 1953 Bom 117 [LQ/BomHC/1952/86] ), and decision of this Court in the case of Sri Ram Tiwary and Anr. v. Bholi Devi and Anr. reported in : 1994 (2) P.L.J.R. 750.

6. According to the Plaintiff-opposite party, in the eviction suit, as the relationship of landlord and tenant is to be seen and the other factor relating to default of payment of rent, there was no occasion for the Court below to allow the said Petitioner under Section 10 Code of Civil Procedure He relied on a decision of the Supreme Court in the case of Dr. N.P. Tripathy v. Smt. Dayamanti Devi and Anr. reported in 1987 P.L.J.R. 53 (S.C).

7. In the case of Jai Hind Iron Mart (supra), rendered by Chagla C.J. and Gajendragadkar, J., the Bombay High Court held that Section 10 Code of Civil Procedure is a mandatory provision, which is to be gone through by the Court. According to them, suit cannot proceed, if stayed, and thus on a decision under Section 10, the jurisdiction of the Court affects in one or other way, as well as the rights of the parties.

So the facts and reasons are to be looked into to find out as to whether there was any requirement to pass an order under Section 10 Code of Civil Procedure or not.

8. In the present case, one of the issues suggested by the Defendant and accepted by the Court, as contained in Annexure-3, reads, as follows:

Issue No. 8:

Whether the suit house belonged exclusively to Basant Sao as his self acquired property or it is a joint family property.

9. From the aforesaid, fact, it is clear that though the present suit has been preferred by Plaintiff as an eviction suit, one of the issue (Issue No. 8) is same and similar to the issue has to be decided by this Court in First Appeal Nos. 793/94 and 10/95, which are pending before this Court.

Admittedly, the suit property of the present eviction suit and the first appeals are common and parties of the present eviction suit are also parties in the first appeals aforesaid. It is further evident that the claim of the Plaintiff made in her plaint filed in Eviction suit No. 9/92 is based on decision given in Title Suit No. 27/88 and the deed of gift dated 2nd June, 1988.

10. Accordingly, I hold that the Court below erred in coming to the conclusion that there was no common issue involved in the present suit and the first appeals aforesaid pending before this Court.

11. For the reasons stated above, I set aside the impugned order dated 24th May, 1995, passed in Eviction Suit No. 9/92. I further direct that the Eviction Suit No. 9/92 shall remain stayed till the disposal of First Appeal Nos. 734/94 and 10/95.

12. The Civil Revision application is allowed with the aforementioned observations and directions. No cost.