Disposed

G. Murali v. Smt. Shanthamma

Karnataka HC28 Oct 2024WP/3418/2024

Case brief

AI extract

What is this about?

Petitioners sought transfer of an ejectment suit and a partition suit to one court, both involving the validity of the same will. The High Court held the suits were independent but transferred O.S No.199/2017 to the II Addl. Senior Civil Judge, Mysuru so findings on the will in O.S No.551/2013 could be considered, with directions to dispose of the ejectment suit within three months.

What did the court decide?

O.S No.199/2017 transferred from IV Addl. Senior Civil Judge to II Addl. Senior Civil Judge, Mysuru; both suits tried together but independently; ejectment suit to be disposed of within three months o

G. Murali Vs Smt. Shanthamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:43729 WP No. 3418 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 3418 OF 2024 (GM-CPC)

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BETWEEN:

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G. MURALI AGED ABOUT 29 YEARS S/O SRI. GUNDANNA

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KUMARI G. PUNYA AGED ABOUT 19 YEARS, D/O GUNDANNA, BOTH ARE R/AT NO. 908, 2^ND MAIN, 1^ST CROSS, VIDYARANAYAPURAM, MYSURU 570 008.

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…PETITIONERS

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(BY SRI. VAGEESHA N.,ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SMT. SHANTHAMMA AGED ABOUT 66 YEARS W/O SRI. M. PRAKASH R/AT NO. 933, F-2 1^ST CROSS, 2^ND MAIN VIDYARANYAPURAM MYSORE 570 008.

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P. RAKESH AGED ABOUT 33 YEARS S/O M. PRAKASH NO. 22/32, 2^ND CROSS HMT LAYOUT MATTIKERE BANGALORE 560 054.

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2 - NC: 2024:KHC:43729 WP No. 3418 of 2024

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ALSO AT NO. 933, F-2, 1^ST CROSS 2^ND MAIN, VIDYARANYAPURAM MYSORE 570 008.

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G.S. GUNDANNA AGED ABOUT 61 YEARS S/O LATE SRI. SUBBA RAO R/AT NO. 70 ADARSH NIWAS, J P NAGAR, 6^TH PHASE BANGALORE 560 078.

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SMT. U. SUDHA AGED ABOUT 57 YARS W/O SRI GUNDANNA NO. 908, 2^ND MAIN 1^ST CROSS, VIDYARANAYAPURAM, MYSURU 570 008.

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G.S. NAGARATHNA AGED ABOUT 71 YEARS W/O M.R. RAMESH RA/T NO. 2395/17-A K-12/A, 11^TH CROSS BASAVESHWARA ROAD, MYSURU 570 004.

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G.S. RAMAMANI AGED ABOUT 57 YEARS W/O HARIPRASAD R/AT NO. E-203, 1^ST STAGE KUVEMPUNAGARA MYSURU 570 023.

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GANESHAN AGED ABOUT 58 YEARS S/O LATE SRI. VENKATARAMANA R/AT NO. 788/103

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3 - NC: 2024:KHC:43729 WP No. 3418 of 2024

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12^TH CROSS, RAMANUJA ROAD FORT MOHALLA MYSURU 570 004.

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…RESPONDENTS (BY SRI. RAVISHANKAR A., ADVOCATE FOR R1 AND R2; NOTICE TO R3, R4 AND R7 IS SERVED VIDE ORDER DATED 28.10.2024.

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VIDE ORDER DATED: 28.10.2024, NOTICE TO R5 AND R6 IS HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 21.12.2023 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, MYSURU IN MIS PETITION NO. 91/2023 PRODUCED AT ANNEXURE-X. ALLOW THE PETITION FILED BY THE PETITIONERS IN MIS PET NO. 91/2023 ON THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE, MYSURU PRODUCED AT ANNEXURE-V. CONSEQUENTLY TRANSFER THE SUIT IN OS NO. 199/2017 WHICH IS PENDING ON THE FILE OF IV ADDL. SENIOR CIVIL JUDGE, MYSURU, PRODUCED AT ANNEXURE-O.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioners are aggrieved by the order dated

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21.12.2023 passed by the Prl. District and Session Judge, Mysuru in Miscellaneous Petition No.91/2023, by which their petition for transferring O.S Nos.551/2013 and 199/2017 to the same Court was rejected.

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(i) The respondent No.1 and her son herein had

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filed O.S No.551/2013 for ejectment of the petitioners herein and their father (Sri Gundanna). The petitioners herein claimed

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that, their grandmother had conveyed the suit property to petitioner No.1 and to his siblings in terms of a will dated 25.04.1993 and that they became the owners of the suit property and hence, they were not liable to be evicted. The said suit is now at the stage of addressing the arguments on the main suit.

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(ii) In the meanwhile, sisters of Sri Gundanna, filed O.S No.199/2017 for partition and separate possession against Sri Gundanna and the petitioners herein. After the suit was filed, sisters of Sri Gundanna did not pursue the suit. The respondent No.1, who was one of the defendants in O.S No.199/2017, therefore sought transposition as a plaintiff, which was allowed. Therefore, presently the respondent No.1 is the plaintiff in O.S No.199/2017, where too, the issue that arise for consideration is the will dated 25.04.1993, allegedly executed in favour of the petitioners. In view of this, the petitioners herein filed Miscellaneous Petition No.91/2023 for transfer of both the suits to one Court and dispose off by common judgment. The learned Prl. District and Session Judge, after considering the contentions raised in both the suits held that "suit in O.S No.199/2017 is for partition and separate

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possession of the plaintiff's 1/4^th share and O.S No.551/2013 is for ejectment. The relief sought for in both suits are different and parties are different and in one case the trial is completed. Therefore, it is not necessary that both the suits be tried by one Court. In O.S No.199/2017, even though trial has commenced, in view of the amendment of plaint the case is posted to file additional written statement. Therefore, it is not appropriate to withdraw the suit in O.S No.199/2017, from the Court of IV Addl. Senior Civil Judge, Mysore to trite along with O.S No.551/2013" . Being aggrieved by the said order, this petition is filed.

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(i) Learned counsel for the petitioners contends

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that in O.S No.551/2013, the petitioners who were arrayed as defendant Nos.3 and 4 had filed a counter-claim claiming partition of their share in the suit property on the ground that the sale deed dated 12.09.2011 executed by their father in favour of plaintiffs did not bind them. He therefore contends that the lawful execution of the will is one of the issues that arise for consideration. He submits that the same issue will arise for consideration in O.S No.199/2017. Thus, he contends

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that in order to avoid conflicting judgments by two Courts, it is appropriate to direct that both the suits to be tried together.

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(ii) This is however, contested by the learned counsel

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for the respondents. He contends that the property involved in O.S No.551/2013 is different than the property involved in O.S No.199/2017. He contends that the petitioners have adduced their evidence in O.S No.551/2013, on the counter claim and therefore, the suit in O.S No.551/2013, which is presently posted for further arguments of the petitioners, cannot be stalled due to mere pendency of the suit in O.S No.199/2017. He contends that if the petitioners succeed in O.S No.199/2017, they are always entitled to recover possession of their share in the property. He therefore contends that, there is no justification to transfer both the suits to one Court to be tried together.

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After hearing the learned counsel for the petitioners as well as the learned counsel for the respondents, one thing is certain, namely the adjudication regarding valid execution of the will in favour of the petitioners herein, is the subject matter in O.S Nos.551/2013 and 199/2017. However, the property involved in both the suits are different. Therefore, the

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petitioners are bound to first establish that they had undivided right in the properties which are subject matter of O.S No.199/2017 and next to establish that property in O.S No.199/2017 was disposed off to acquire the property in O.S No.551/2013. In that view of the matter, as rightly contended by the learned counsel for the respondents, both the suits are based on two different set of facts and hence, are not dependant on the outcome of each other. However, since the issue of lawful execution of the will is a common issue that arise in both the suits, it is appropriate to transfer both the suits to one Court so as to ensure that the finding recorded in O.S No.551/2013 is noted while recording findings in O.S No.199/2017 as regards the lawful execution of the will is concerned. However, the Court shall try and dispose off both the suits independently. The transfer of both the suits is only for limited purpose of ensuring that there is no conflicting opinion recorded by the Courts about the lawful execution of the will.

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In that view of the matter, this petition is disposed

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off , directing transfer of O.S No.199/2017, which is pending consideration before the Court of IV Addl. Senior Civil Judge,

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Mysuru to II Addl. Senior Civil Judge, Mysuru. The learned II Addl. Senior Civil Judge, Mysore is directed to take both the suits together and he shall first decide the suit in O.S No.551/2013 based on the evidence already adduced. The findings recorded in O.S No.551/2013 shall be considered while disposing off O.S No.199/2017.

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The suit for ejectment in O.S No.551/2013 is pending since last 11 years and the plaintiff in the said suit is stated to be a senior citizen. Hence, it is appropriate to direct the Trial Court to dispose off the suit in O.S No.551/2013, as early as possible which shall not be later than three months

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from the date of conclusion of the argument by the defendants.

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Sd/(R. NATARAJ) JUDGE

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THM List No.: 1 Sl No.: 36

G. Murali v. Smt. Shanthamma

Case brief

What is this about?

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G. Murali v. Smt. Shanthamma

Case brief

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