JUDGMENT
Hemant Gupta, J.
1. The plaintiff has filed the present revision petition aggrieved against the order dated 1.8.2002 whereby the proceedings of the suit were stayed in terms of issue No. 5 which reads as under:
5. Whether the present suit is liable to be stayed under Section 10 CPC? OPD
2. Suit No. 176 of 1997, titled Smt. Gurmit Kaur and Ors. v. Mukhtiar Singh and Ors. is for declaration to the effect that the plaintiff is owner in possession of the suit property and that the Genera! Power of Attorney dated 6.2.1996 is illegal, void result of fraud, misrepresentation and the sale deeds allegedly executed by Mukhtiar Singh on the basis of said Power of Attorney are illegal, void and have no effect on the rights of the plaintiff. With the said suit, another Civil Suit No. 414 of 29.11.1996 titled Balbir Singh and Ors. v. Gurdip Kaur and Ors., was consolidated vide order dated 29.5.2002. Both the aforesaid suits have been stayed by the learned trial Court vide impugned order on the basis of judgment and decree in another Suit No. 129 of 30.11.1996 titled Lakhbir Singh, v. Gurdip Kaur, decided on 10.5.2002. it has been held that the judgment and decree dated 10.5.2000 Ex. DM and Ex. D15 operate res judicata even though appeal against the said judgment and decree is pending for final disposal before the first Appellate Court.
3. On the basis of Power of Attorney dated 6.2.1996, Mukhtiar Singh has executed three separate sale deeds are dated 21.5.1996 in respect of land measuring 23 kanals 12 marlas; sale deed dated 14.5.1999 in respect of land measuring 41 kanals 1 marla and sale deed in respect of house dated 22.9.1996. In respect of first sale deed dated 21.5.1996, the vendee Balbir Singh and Lakhbir Singh have executed sale deed in favour of Mukhtiar Singh on 8.10.1996 whereas another sale deed dated 8.1.1996 has been executed by Balbir Singh and Lakhbir Singh vendee of the sale deed dated 14.5.1996, in favour of Jaswant Singh son of Gurdeep Kaur and exchanged the land measuring 11 kanals 16 marlas on 8.10.1996. Similarly, the vendee in respect of sale deed dated 22.9.1996, i.e. Kashmir Singh has executed another sale deed dated 8.10.1995 in favour of Jaswant Singh son of Gurdip Kaur. All the sale deeds are subject matter of challenge in civil Suit No. 176 of 1997. Another suit which has been consolidated has been filed by Balbir Singh and others whereas suit filed by Lakhbir Singh in respect of land measuring 17 kanals 1 marla allegedly conveyed on the basis of the sale deed dated 14.5.1996 was decreed on 10.5.2000 wherein a finding has been recorded that the General Power of Attorney dated-6.2.1996 is legal and valid.
4. The learned trial Court has stayed the’ proceedings of the two consolidated suits relying upon a judgment and decree dated 1.5.2000 Ex.D14 and Ex.D15 holding that the finding in the said civil suit will operate as res judicata. I am unable to agree with the finding recorded by the learned trial Court. It is admitted by the learned counsel for the parties and as is evident from the order passed by the learned trial Court itself that the said judgment and decree is the subject matter of appeal which is pending for final disposal. Therefore, the finding recorded by the learned trial Court in the judgment and decree Ex.D14 and Ex.D15 has not attained finality.
5. Even though the issue regarding the General Power of Attorney dated 6.2.1996 may be common in the three suits but the facts remain that different sale deeds have been executed by Mukhtiar Singh on the basis of said Power of Attorney. Each of the transactions is an independent transaction conveying the property to separate persons. It has been held by this Court in Balinder Kaur v. Dayal Kaur1 2002(1) P.L.J. 441, that the proceedings in the suit cannot be stayed only because one of the issue in the different suits is common.
6. Learned counsel for the respondent has relied upon a Single Bench judgment of Rajasthan High Court in Ram Kishore v. Padam Chand and Ors., 1999(2) Civil Court Cases 441, to contend that the proceedings in subsequent suit can be stayed only if the finding in the former suit will operate as res judicata. Reliance was also placed on Mana v. Dalel, 1978 P.L.J. 380, wherein the proceedings were not stayed by this Court during the pendency of Regular Second Appeal pending before this Court. Said judgments are clearly distinguishable and not applicable to the facts of the present case. In Ram Kishore’s case (supra) it was held that the proceedings in subsequent suit can be stayed only if the finding in the former suit will operate res judicata even though the relief prayed for in the former suit and subsequent suit may differ. It was held that the dominant object of the provisions of Section 10 CPC is that no person should be vexed twice with regard to the same matter in issue and there should not be conflicting judgments in two parallel suits in respect of the same matter at issue and also to avoid multiplicity or litigation with a view to ensure speedy justice.
7. In Mana’s case (supra) it was found that the property in dispute in both the suits as well as the parties are the same. It was also not disputed that the result of R.S.A. would determine as to whether the petitioner is really entitled to the relief of possession.
8. One cannot lose sight of the fact that the parties have concluded their respective evidence and the case was fixed for arguments when the trial Court proceeded to decide issue No. 5 and passed the order of stay of proceedings in the suit. Once the parties have led evidence it was appropriate for the court to decide the suit on merits when the subject matter of the litigation as well as parties are not common in the proceedings.
9. A perusal of the entire facts and circumstances of the case shows that only issue which can be said to be common in the present suit while the suit decided is regarding the validity of Power of Attorney. Even the finding on the said issue is not final and subject matter of appeal before the first appellate court. Since the appeal is pending, it cannot be said that the issue has been heard and finally decided by the competent court which may operate as res judicata in the present suit. Therefore, the finding recorded by the learned trial Court that the judgment and decree Ex.D14 and Ex.D15 operate as res judicata is not sustainable.
10. Consequently, the order dated 1.8.2002 is set aside. However, it is appropriate if any appeal is preferred against the judgment and decree after the final decision in Civil Suits No. 176 of 1997 titled Smt. Gurmit Kaur v. Mukhtiar Singh and Ors. and Suit No. 414 dated 29.11.1996 titled Balbir Singh and Ors. v. Gurdip Kaur and Ors., the same should be heard and decided along with Civil Appeal No. 145 dated 9:6.2000.
The parties through their counsel are directed to appeal before the trial Court on 9.8.2004.