IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO. 85 OF 2013 (M) BETWEEN:
1. M.K.APPANNA, S/O LATE KENCHAPPA, AGED ABOUT 75 YEARS, RESIDING AT NO.31, POOJAMAHALAKSHMI LAYOUT, KOGIL, YELAHANKA, BENGALURU – 54.
2. M.K.SHIVASHANKARA BABU, S/O LATE KENCHAPPA, AGED ABOUT 66 YEARS, RESIDING AT S.K.M.R BUILDER DEVELOPER (COMPOUND), BELISHIVALAYA, DODDA GUBBI POST, BENGALURU EAST.
3. M.K.JANARDHANA GANDHI, S/O LATE KENCHAPPA, AGED ABOUT 60 YEARS, RESIDING AT NO.19, 4TH CROSS, MAHESHWARAMMA TEMPLE STREET, J.C.NAGAR, MUNIREDDY PALYA, BENGALURU – 6. …PETITIONERS (BY SRI.SUHAS P, ADVOCATE FOR SRI M.C.RAVIKUMAR, ADVOCATE) AND:
1. SMT.JAYALAKSHMI, AGED ABOUT 57 YEARS, W/O LATE M.K.SAMPATH KUMAR.
2. SRI.SANJAY, AGED ABOUT 38 YEARS, S/O M.K.SAMPATH KUMAR.
3. SRI NAVEEN, AGED ABOUT 36 YEARS, S/O M.K.SAMPATH KUMAR.
4. SRI.APPANNA, S/O M.K.SAMPATH KUMAR, AGED ABOUT 36 YEARS.
RESPONDENTS NO.1 TO 4 ARE RESIDING AT NO.19, 4TH CROSS, MAHESHWARAMMA TEMPLE STREET, JC NAGAR, MUNIREDDYPALYA, BENGALURU – 06.
5. SMT.BEERAMMA, W/O LATE M.K.ANANTH MURTHY, AGED ABOUT 48 YEARS.
6. SRI SURESH, AGED ABOUT 48 YEARS.
7. SRI.RAMESH, AGED ABOUT 45 YEARS.
8. SRI CHANDRA, AGED ABOUT 43 YEARS.
9. SMT.LALITHA, AGED ABOUT 40 YEARS.
10. SMT.LATHA, AGED ABOUT 38 YEARS, ALL ARE MAJORS.
NO.5 TO 10 ARE THE CHILDRENS OF LATE M.K.ANANTH MURTHY, ALL ARE RESIDING AT NO.59, 1ST MAIN, 5TH CROSS, RAMANNA COMPOUND, DINNUR, R.T.NAGAR POST, BENGALURU – 32.
11. M.K.KRISHNA MURTHY, S/O LATE KENCHAPPA, AGED ABOUT 70 YEARS, RESIDING AT NO.28, KENCHAPPA GARDEN, R.T.NAGAR, BENGALURU – 32.
12. SRI.M.K.JAI RAM, SINCE DECEASED BY HIS LR’s KEMPAMMA, W/O M.K.JAIRAM, MAJOR, R/A NO.19, 4TH CROSS, MAHESHWARAMMA TEMPLE STREET, J.C.NAGAR, MUNIREDDYPALYA, BENGALURU – 06.
13. M.K.DEVARAJ, AGED ABOUT 58 YEARS, S/O LATE KENCHAPPA, RESIDING AT NO.19, 4TH CROSS, MAHESHWARAMMA TEMPLE STREET, J.C.NAGAR, MUNIREDDYPALYA, BENGALURU – 06. ...RESPONDENTS (BY SRI.V.K.KUMBAR, ADVOCATE FOR R1 TO R4 R5 TO R13 SERVED) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDERS DATED 29.11.2012 PASSED IN MISC.685/2011 ON THE FILE OF PRL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 24 OF CPC.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners.
2. This petition is filed for setting aside the impugned order dated 29.11.2012 passed in Miscellaneous No.685/2011 by the Prl. City Civil & Sessions Judge, Bengaluru.
3. The facts briefly stated are that the petitioners had filed O.S. No.8783/2010 for partition and other consequential reliefs. The respondent Nos.8 to 11 had filed O.S. No.4686/2011 against the petitioner No.3 – M.K.Janardhana Gandhi, for possession, mesne profits and damages. The petitioners had filed Miscellaneous Petition for transfer of O.S. No.4686/2011 pending on the file of XII Addl. City Civil & Sessions Judge (CCH- 27), Bengaluru, to the Court of XV Addl. City Civil & Sessions Judge (CCH-3), Bengaluru, where the original suit in O.S. No.8783/2010 is pending, and to dispose of both matters together in accordance with law. The said petition was dismissed. Being aggrieved by the said order, the petitioners have preferred this revision petition.
4. The main contention of the counsel for the petitioners is that in both suits, namely the parties are the same and the suit in O.S. No.8783/2010 is for partition and separate possession of the joint family properties. Whereas, O.S. No.4686/2011 is also filed by the four members of the joint family against another member of the joint family who are arrayed as Defendant Nos.8, 9, 10 and 11 in O.S. No.8783/2010 against the defendant – M.K.Janardhana Gandhi, who is the plaintiff No.3 in O.S. No.8783/2010, for the relief of partition and separate possession. Thus, both suits shall have to be clubbed and heard by the same Court.
5. As could be seen from the records and averments made in the plaint, O.S. No.8783/2010 is for partition and separate possession of the joint family properties. Whereas, O.S. No.4686/2011 is filed for eviction and the said suit is contested on a plea that subject property is the joint family property and that the plaintiff No.3 in O.S. No.8783/2010 who is in possession of the property being a joint family member and not as a tenant. The miscellaneous petition filed by the petitioner is rejected mainly on two grounds namely:
01. The parties and the suit property are not common.
02. The respondent in O.S. No.4686/2011 has sought for the relief of possession against petitioner No.3 only.
6. Hence, the reliefs in both suits are distinct and evidence would be different. As such, they cannot be clubbed for common trial and disposal.
7. It is pertinent to note that the miscellaneous petition was filed for transfer of O.S. No.4686/2011 pending on the file of XII Addl. City Civil & Sessions Judge (CCH-27), Bengaluru, to the Court of XV Addl. City Civil & Sessions Judge (CCH-3), Bengaluru. The plaintiffs in O.S. No.4686/2011 are the defendant Nos.8 to 11 in O.S. No.8783/2010. The defendant in O.S. No.4686/2011 is the plaintiff No.3 in O.S. No.8783/2010.
Issue No.IV in O.S. No.4686/2011 reads as under:
“What is the effect of O.S. No.8783/2010?”
8. It is submitted that, one of the issues framed in O.S. No.4686/2011 proving the title of the plaintiffs in the said suit is depending on the verdict to be given in O.S. No.8783/2010, which is the suit for partition and separate possession. Thus, it is necessary that both suits shall be clubbed and heard by the same court.
9. No doubt, as contended by the Trial Judge, it may not be necessary to club both cases for common trial and disposal, as the reliefs claimed in both suits are distinct and separate. But, the relief claimed for transfer of the case is justified, as one of the issue in O.S. No.4686/2011 is interlinked regarding tenancy.
Thus, both cases may be heard by the same Judge.
10. Hence, this Court is of the opinion that the impugned order dated 29.11.2012 passed in Miscellaneous No.685/2011 by the Prl. City Civil & Sessions Judge, Bengaluru, needs to be modified.
11. For the foregoing reasons, the civil revision petition is allowed. The petition under Section 24 of the Code of Civil Procedure is partly allowed.
12. O.S. No.4686/2011 pending on the file of XII Addl. City Civil & Sessions Judge (CCH-27), Bengaluru, is ordered to be transferred to the Court of XV Addl. City Civil & Sessions Judge (CCH-3), Bengaluru.
The prayer for clubbing of both suits is rejected.
Sd/- JUDGE SJ