[Cites 4, Cited by 0]
Patna High Court
Shailesh Kumar @Raju vs The Estate Of Late Bangali Singh on 10 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.404 of 2023
======================================================
1. Shailesh Kumar @Raju son of Late Bangali Singh resident of Sumitra Sadan
Boring Canal Road, P.S.- Sri Krishnapuri, Town and District of Patna.
2. Rajesh Kumar Singh @ Anish Kumar Son of Late Bangali Singh resident of
'Sumitra Sadan' Boring Canal Road, P.S.- Sri Krishnapuri, Town and District
of Patna.
3. Mukesh Kumar Singh @ Raj Son of Late Bangali Singh resident of 'Sumitra
Sadan' Boring Canal Road, P.S.- Sri Krishnapuri, Town and District of
Patna.
... ... Petitioner/s
Versus
1. The Estate of late Bangali Singh
2. Satya Narayan Singh @Satyendra Narayan Singh, S/o Late Bangali Singh
resident of 'Sumitra Sadan' Boring Canal Road, P.S.- Sri Krishnapuri, Town
and District of Patna and presently residing at Mohalla Sheikhpura in the
house of Shri K.N. Singh (Mohani Gali), P.S.- Hawai Adda, P.O.-Bihar
Veterinary College, Dist.- Patna.
3. Ashok Kumar Singh Son of Late Bangali Singh resident of 'Sumitra Sadan'
Boring Canal Road, P.S.- Sri Krishnapuri, Town and District of Patna.
4. Shiv Shankar Singh @ Pawan Kumar Son of Late Bangali Singh resident of
'Sumitra Sadan' Boring Canal Road, P.S.- Sri Krishnapuri, Town and District
of Patna.
5. Sanjay Kumar Singh Son of late Bangali Singh resident of 'Sumitra Sadan'
Boring Canal Road, P.S.- Sri Krishnapuri, Town and District of Patna.
6. Dilip Kumar Singh @ Manish Kumar Singh resident of 'Sumitra Sadan'
Boring Canal Road, P.S.- Sri Krishnapuri, Town and District of Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Radha Mohan Pandey, Advocate
Mr. Chandra Shekhar Verma, Advocate
Mr. Abhay Kumar, Advocate
For the Respondent/s : Mr. J.S. Arora, Sr. Advocate
Mr. Rakesh Kumar, Advocate
Mr. Ravi Bhatia, Advocate
For the Respondent No. 3 Mr. Dhanendra Chaubey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
Date : 10-04-2026
Heard learned counsel for both the parties.
2. The present Civil Miscellaneous application
has been filed for setting aside the order dated 29.09.2022
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
passed by learned Additional District Judge-IV, Patna in
L.A. Case No. 33 of 2017 converted to T.S. No. 49 of
2018 through which petition dated 24.03.2022 filed by
these petitioners under Section 10 read with Section 151
C.P.C has been rejected erroneously and illegally.
3. It is submitted by learned counsel for the
petitioners that these petitioners have filed L.A. Case No.
33 of 2017 for the grant of Letter of Administration for
Registered Will dated 03.03.2010 executed by their father
Bangali Singh (now deceased) which has been converted
in Title Suit No. 49 of 2018 and is pending at present in
the Court of learned Additional District & Sessions Judge-
IV, Patna. He further submits that Satyendra Narayan
Singh (brother of the petitioners of aforesaid L.A Case)
has also instituted Title Partition Suit No. 230 of 2013 for
his share in the suit properties. Subsequently the
petitioners filed a petition dated 24.03.2022 under Section
10 read with Section 151 of the Code of Civil Procedure in
the Court of learned A.D.J-IV, Patna for stay of the
proceeding of Title Partition Suit No. 230 of 2013 on the
basis of sound legal reasoning based on a judgment
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
reported in AIR 2017 ODISHA 48 which has been
dismissed by the impugned order.
4. Per contra, Learned counsel appearing on
behalf of the respondents has objected the above
contention of the learned counsel for the petitioners on two
grounds; firstly, the nature of the aforesaid two suits are
not same. In probate case/testamentary suit, only the
genuineness of the Will shall be decided whereas in Title
Partition Suit, the unity of title and possession and share of
the respective parties shall be decided. He further submits
that the decision/judgment passed in one case shall not
operate as res-judicate in another case. Secondly, the Title
Partition Suit is prior to probate case/testamentary suit. He
placed reliance on the judgment reported in (2005) 12
SCC 503 (Balbir Singh Wasu versus Lakhbir Singh and
Others). The relevant paragraph of said judgment reads as
follows:-
"A. Civil Procedure Code, 1908-Ss.
10, 22 and 25-Bar Under S. 10-When
attracted-Civil suit challenging execution
of Will filed prior to filing of probate
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
proceedings, if barred the latter under S.
10- Held, through a decision in the civil
suit would not conclude the probate
proceedings, it would still be relevant,
since the question whether probate should
be granted or not would still be left to be
determined by the Probate Court-Hence,
since a large number of issues would
overlap, probate proceedings and civil suit
clubbed, to be heard together by District-
Judge-Will-Succession Act, 1925-S. 213.
5. Learned counsel also placed reliance on a
judgment reported in 1990 SCC Online Pat 203 (Matia
Devi versus Smt. Masani Devi and Others) and another
judgment passed by Hon'ble Patna High Court in Civil
Revision No. 1957 of 1996(Arvind Kumar Versus
Umapati Devi and Ors). The relevant paragraph of the
judgment reads as under:-
"Civil Procedure Code, 1908-Sections
10 and 151-Stay of suit under Section 10-
Tests to be applied for-Stated-Suit for
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
partition filed earlier and Letters of
Administration case filed subsequently
-Issues in both suits neither substantially
same nor decision of earlier suit would
operate as res-judicata or non-suit plaintiff
in subsequent suit-Thus, impugned order
refusing to stay earlier suit-Cannot be said
to be erroneous."
6. After going through the above decision of
Hon'ble Apex Court and earlier decision of this Court,
referred to above, it is abundantly clear that for
applicability of Section 10 of C.P.C, it is essential to
examine the following facts:-
(i) Whether the issues directly and substantially
involved in both the suits are similar/identical or not
between the same parties or between parties under whom
they or any of them claim litigating under the same title
(ii) Whether the decision in one case will operate
as res judicata in another case or not ?.
7. If above both points are answered in
affirmative then only the subsequent suit shall be stayed in
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
view of Section 10 of C.P.C. The earlier suit shall not be
stayed by invoking above principle of Section 10 C.P.C.
Section 10 of the C.P.C 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] have
jurisdiction to grant the relief claimed, or
in any Court beyond the limits of [India]
established or continued by [the Central
Government 3***.] and having like
jurisdiction, or before [the Supreme
Court]."
8. From perusal of the Impugned Order, it clearly
transpires that the learned Additional District Judge-IV,
Patna has fully and categorically examined the above
Patna High Court C.Misc. No.404 of 2023 dt.10-04-2026
principle of Section 10 C.P.C as well as its applicability in
this case and has rightly rejected the petition filed by the
petitioners under Section 10 of the C.P.C.
9. I do not find any illegality and impropriety in
the impugned order dated 29.09.2022 passed by learned
Additional District Judge-IV, Patna in L.A. Case No. 33 of
2017.
10. Accordingly, Civil Miscellaneous No. 404 of
2023 stands dismissed.
11. However, in view of the judgment of Hon'ble
Apex Court as well as Hon'ble Patna High Court, referred
to above, the Title Partition Suit No. 230 of 2013 is
transferred to the L.A. Court and learned District Judge,
who is hearing LA. Case No. 33 of 2017 is directed to
dispose of the above Partition Suit along with said L.A.
Case simultaneously.
(S. B. Pd. Singh, J)
Shageer/-
AFR/NAFR AFR
CAV DATE 24/03/2026
Uploading Date 10/04/2026
Transmission Date N/A
