Nataraju M Kasetty vs H E Mynuddin Pasha
2021 Latest Caselaw 1246 Kant

                                 1


            IN THE HIGH COURT OF KARNATAKA
                     AT BENGALURU

       DATED THIS THE 20TH DAY OF JANUARY 2021

                              BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

               CIVIL PETITION No.104/2020
Between:

Nataraju M. Kasetty,
S/o M.B. Kasetty,
Aged about 71 years,
R/o B.H. Road, Near Bus Stand,
Shivamogga - 577 201.                    ... Petitioner

(By Sri R. Gopal, Advocate)

And:

1.     H.E. Mynuddin Pasha,
       S/o H. Ebrahim,
       Aged about 60 years,
       Excise Licensee & Proprietor of
       Prince Liquors,
       Near Bus Stand, B.H. Road,
       Shivamogga,
       R/o "H.E. Nivasa",
       4th Cross,
       Rajendranagar,
       Shivamogga - 577 201.

2.     K. Shivakumar,
       S/o M.B. Kasetty,
       Aged about 56 years,
       R/o Kasetty Building,
       Near Bus stand,
       B.H. Road,
       Shivamogga - 577 201.
                                      2


3.    Mohammad Ibrahim,
      S/o Mohammad Koya,
      Aged major, Bag Palace,
      Leather Bags,
      Suite cases & Novelty items dealers,
      Kasetty Building,
      Near Bus Stand,
      B.H. Road,
      Shivamogga - 577 201.                            ... Respondents

(R1, R2 & R3 - Served)

      This Civil Petition is filed under Section 24 of CPC, praying
to withdraw and transfer R.A. No.72/2017 pending on the file of
III Additional District and Sessions Judge at Shivamogga to this
Hon'ble High Court for disposal of the same along with RFA
No.1538/2017 pending on the file of this Hon'ble Court in
accordance with law, in the interest of justice and equity.

      This Civil Petition coming on for Admission this day, the
Court made the following:

                                 ORDER

This petition has been filed by the plaintiff in

O.S.No.225/2004 and defendant in O.S.No.290/1999.

O.S.No.225/2004 is stated to have been filed seeking the

relief of recovery of rent, damages and recovery of

possession of suit schedule property by the petitioner, who

is the plaintiff in the said suit, which is stated to have been

dismissed. On the other hand, O.S.No.290/1999 is the suit

for partition filed against the present petitioner by

respondent No.2 herein and other persons.

2. It is submitted that both suits, O.S.No.290/1999

and O.S.No.225/2004 were clubbed together and after trial

common judgment has been passed on 12.04.2017

disposing off both the suits, whereby O.S.No.225/2004

came to be dismissed, while O.S.No.290/1999 has been

decreed.

3. It is further submitted that as against the

judgment and decree in O.S.No.290/1999,

R.F.A.No.1538/2017 has been filed in light of pecuniary

jurisdiction, while aggrieved by the judgment and decree in

O.S.No.225/2004, R.A.No.72/2017 has been filed, which is

pending consideration.

4. The respondents have remained absent despite

service of notice.

5. The learned counsel appearing for the petitioner

submits that the right of plaintiff in O.S.No.225/2004 rests

on the relinquishment deed and Will set up by him which is

also the same defence taken by him as defendant in

O.S.No.290/1999.

6. It is submitted that eventually in the judgment

and decree in O.S.No.225/2004, the trial Court has

adverted to the validity of relinquishment deed and Will.

Even in the present appeal, the validity of relinquishment

deed and Will would be a determining factor while passing

the final judgment.

7. It is further submitted that conflicting decrees

ought to be avoided, and that if the findings are given by

both Appellate Courts, i.e. in R.A.No.72/2017 and R.F.A.

No.1538/2017 in a divergent manner, there would be

miscarriage of justice.

8. Taking note of the common issue involved in the

appeals pending before the Appellate Courts, i.e. as regards

the validity of relinquishment deed and Will, it is just and

appropriate to prevent the passing of conflicting decrees by

consolidating the proceedings.

9. Noticing that R.F.A.No.1538/2017 is already

pending before this Court, which appeal is filed against the

judgment and decree in O.S.No.290/1999 to avoid passing

of conflicting decrees on the basis of findings on common

contentions raised in both the suits, it would be just and

appropriate and in the interests of justice to withdraw the

proceedings in R.A.No.72/2017 pending on the file of III

Additional District and Sessions Judge, Shivamogga and

transfer the same to this Court to enable the said Regular

Appeal being disposed of alongwith R.F.A.No.1538/2017.

10. It is noticed that issue Nos.10 and 11 relate to

proof of Will and relinquishment deed, which is also a

matter that has been raised as defence in

O.S.No.290/1999, wherein the present petitioner's brother

was the plaintiff.

11. Accordingly, the proceedings in R.A.No.72/2017

pending on the file of III Additional District and Sessions

Judge, Shivamogga is to be withdrawn and transferred to

this Court, for being disposed of alongwith

R.F.A.No.1538/2017.

12. The records pertaining to R.A.No.72/2017

pending on the file of III Additional District and Sessions

Judge, Shivamogga is to be transmitted to this Court

forthwith.

This petition is accordingly disposed off.

Sd/-

JUDGE

VGR