Remanded

Smt Aswathamma v. Smt Gangamma @ Sunadamma

Karnataka HC4 Mar 2024WP/42820/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka held that where a subsequent suit claims declaration of title as absolute property contrary to a prior suit which claimed joint estate, the subject matter is not substantially the same. Consequently, a stay was improper and the suits should be clubbed.

What did the court decide?

The suit in O.S.No.543/2010 is ordered to be transferred to the court where O.S.No.40/2012 is pending for clubbing and common trial.

Smt Aswathamma Vs Smt Gangamma @ Sunadamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:9049 WP No. 42820 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 42820 OF 2017 (GM-CPC)

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BETWEEN:

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SMT. ASWATHAMMA W/O. LATE RAMAKRISHNA REDDY, AGED ABOUT 55 YEARS, R/AT K.B. HOSAHALLI VILLAGE, NARASAPURA POST AND HOBLI,

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KOLAR TALUK

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AND DISTRICT-563133

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PRAKASH S/O. LATE RAMAKRIHNA REDDY, AGED ABOUT 31 YEARS, R/AT. VINAYAKA NAGAR, VARTHUR, BENGALURU-87

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SMT. VISHALAKSHI W/O. MANJUNATH, AGED ABOUT 37 YEARS, R/AT. APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK-563133

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SMT. PREMA W/O. PILLAREDDY, AGED ABOUT 35 YEARS, R/AT. APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK-563133

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SMT. NAGAROOPA W/O. RAMESH, AGED ABOUT 33 YEARS, R/AT. SWARANCE VILLAGE, VARTHUR HOBLI,

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2 - NC: 2024:KHC:9049 WP No. 42820 of 2017

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BANGALORE-87

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…PETITIONERS

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(BY MS. AISHWARYA HEGDE, ADVOCATE FOR SRI. SANTHOSH S NELKUDRI, ADVOCATE)

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AND:

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SMT. GANGAMMA @ SUNADAMMA W/O LATE VENKATESH REDDY, AGED ABOUT 70 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133 KOLAR TALUK AND DISTRIST.

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SMT. SHEELA W/O RAMESH, D/O LATE VENKATESH REDDY, AGED ABOUT 33 YEARS, R/AT LAKSHMIPURA VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563133

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SMT. PUSHPALATHA W/O MANJUNATH, D/O LATE VENKATESH REDDY, AGED ABOUT 29 YEARS, R/AT VALEPURA VILLAGE, NEAR ASHWATH KATTEE, VARTHUR HOBLI, BANGALORE-87

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SRI. SUDHAKAR S/O LATE VENKATESH REDDY, AGED ABOUT 29 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133 KOLAR TALUK AND DISTRICT

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MUNI REDDY DEAD BY HIS LRS

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SMT. PARVATHAMMA, W/O LATE MUNI REDDY, AGED ABOUT 63 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133

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3 - NC: 2024:KHC:9049 WP No. 42820 of 2017

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KOLAR TALUK AND DISTRICT

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MURALI MOHAN S/O LATE MUNI REDDY, AGED ABOUT 28 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133 KOLAR TALUK AND DISTRICT

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CHANDRA REDDY S/O LATE MUNISHAMY REDDY, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI - 563133 KOLAR TALUK AND DISTRICT

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SMT. NAGAVEENI W/O LATE SRINIVASA REDDY, AGED ABOUT 37 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133 KOLAR TALUK AND DISTRICT

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KUMARI TEJASWENI D/O LATE SRINIVASA REDDY, MINOR

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KUMARI VARSHINI D/O LATE SRINIVASA REDDY,

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RESPONDENTS NO.9 AND 10 MINORS, REPRESENTED BY HER MOTHER GUARDIAN SMT.NAGAVEENI W/O LATE SRINIVASA REDDY, R/AT KARUDUBANDE HOSAHALLI VILLAGE -563133 NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT.

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THE SPECIAL LAND ACQUISITION OFFICER KIADB, 3^RD CROSS, KHENI BUILDING, GANDHINAGAR, BANGALORE-02

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LAKSHMAMMA D/O LATE MUNISWAMI REDDY, AGED ABOUT 55 YEARS, R/AT KARUDUBANDE HOSAHALLI VILLAGE, NARASAPURA HOBLI-563133

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NC: 2024:KHC:9049 WP No. 42820 of 2017

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KOLAR TALUK AND DISTRICT.

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…RESPONDENTS

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(BY SRI. PRAKASH R. GARASANGI, ADVOCATE FOR SRI. B.B. PATIL, ADVOCATE FOR RESPONDENT NO.11;

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RESPONDENT NOS.9 AND 10 ARE MINORS REPRESENTED BY RESPONDENT NO.8;

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SRI. V.B.SHIVAKUMAR, ADVOCATE FOR RESPONDENT NO.12; NOTICE SERVED ON RESPONDENT NOS.1, 3 TO 8 AND UNREPRESENTED;

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VIDE ORDER DATED 12.02.2024 PETITION AGAINST RESPONDENT NO.2 IS DISMISSED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.07.2017 PASSED ON IA NO.XVIII IN O.S.NO.40/2012 ON THE FILE OF THE 1ST ADDITIONAL SR.CIVIL JUDGE AND JMFC AT KOLAR AS PER ANNEXURE-G.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiffs in O.S.No.40/2012 on the file of III Additional Senior Civil Judge & JMFC, at Kolar have filed this petition challenging an order dated 22.07.2017, by which, an application (I.A.No.18) filed by the defendant No.11 under Section 10 read with Section 151 of Civil Procedure Code to stay further proceedings in the suit till the final disposal of O.S.No.543/2010 was allowed.

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NC: 2024:KHC:9049 WP No. 42820 of 2017

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The defendant No.11 in O.S. No.40/2012 filed

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O.S.No.543/2010 for partition and separate possession of her share in the suit schedule property. The petitioners herein were arrayed as defendants in the said suit. They contended that the property bearing Sy.No.107 of Karudubande Village, Narasapura Hobli, Kolar taluk were their absolute properties, where the defendant No.11 did not have any right, title or interest over the same.

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Later, the petitioners herein filed O.S.No.40/2012 for declaration of their title over the schedule properties and for perpetual injunction restraining the defendant No.11 and others from interfering with their possession.

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The defendant No.11 therefore filed an application in O.S.No.40/2012 for stay of further proceedings in view of the pendency of the suit in O.S.No.543/2010. The Trial Court noticed that the properties in both the suits were the same. The plaintiff in O.S.No.543/2010 claimed that the suit property was a joint estate, while the defendants claimed to the contrary and contended that the suit properties were their absolute properties. The Trial Court therefore, allowed the application

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NC: 2024:KHC:9049 WP No. 42820 of 2017

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and stayed further proceedings in O.S.No.543/2012 by the impugned order. Being aggrieved by the same, the plaintiffs have filed this writ petition.

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The learned counsel for the petitioners submitted that since the issues in both the suits are almost similar, the Trial Court must have considered clubbing both the suits and treating the suit filed in O.S.No.40/2012 as the lead suit. She submits that petitioners would have to unnecessarily wait till the disposal of the suit filed by the defendant No.11 to seek adjudication of their title to the suit properties in O.S.No.40/2012. She therefore, contends that both the suits must have clubbed for a common trial and a common judgment.

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Per contra, the learned counsel for the defendant No.11 submits that the written statement filed by the petitioners in O.S.No.543/2010 is nothing but the plaint averments in O.S.No.40/2012 and therefore, until the suit in O.S.No.543/2010 is decided, the petitioners are not entitled to file a fresh suit.

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NC: 2024:KHC:9049 WP No. 42820 of 2017

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I have considered the submissions made by the

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learned counsel for the plaintiffs and learned counsel for the defendant No.11.

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An application under Section 10 of Civil Procedure Code is maintainable when the subject matter in issue in a subsequent suit is also directly, substantially in issue in a previously instituted suit, between the same parties, under whom, they were any of them claim. In the case on hand, no doubt, the suit properties are the same and the parties are also the same. While, the plaintiff in O.S.No.543/2010 claimed that the suit properties were the joint estate, the plaintiffs in O.S.No.40/2012 claim to the contrary and contend that it is their self acquired properties. Therefore, the defence in one suit is the plaint averments in the other suit. It is noticed that the petitioners herein who are the defendants in O.S.No.543/2010 did not seek for any counter claim that they are the owners of the suit properties, but instead filed a separate suit for declaration of their title to the suit schedule properties. Therefore, the Court cannot decide the title of the petitioners herein in O.S.No.543/2010. Consequently, it cannot be held that the matter in issue in the subsequent suit was directly,

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NC: 2024:KHC:9049 WP No. 42820 of 2017

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substantially in issue in the previously instituted suit. Therefore, in the fitness of things, the Trial Court instead of staying the proceedings in O.S.No.543/2010, must have directed clubbing of both the suits.

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In that view of the matter, the suit in O.S.No.543/2010 is ordered to be transferred to the Court where O.S.No.40/2012 is pending consideration. After the suit is transferred, the Trial Court shall club both the suits together and treat the suit in O.S.No.543/2010 as the lead suit, record common evidence and pass a common judgment.

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Writ petition stands disposed off with the above observations.

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Sd/JUDGE

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List No.: 1 Sl No.: 35

Smt Aswathamma v. Smt Gangamma @ Sunadamma

Case brief

What is this about?

What did the court decide?

Smt Aswathamma v. Smt Gangamma @ Sunadamma

Case brief

What is this about?

What did the court decide?

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