Smt. Sarojamma vs Abdul Aleem
2023 Latest Caselaw 6494 Kant

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                                                      NC: 2023:KHC:33246
                                                 RFA No. 1703 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 13TH DAY OF SEPTEMBER, 2023

                                      BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  REGULAR FIRST APPEAL No.1703 OF 2016 (RES)
            BETWEEN:

            SMT. SAROJAMMA
            W/O LATE SOMASHEKAR,
            AGED ABOUT 74 YEARS
            RESIDING AT NO.4, 6TH CROSS,
            MARKHAM ROAD,
            ASHOKNAGAR,
            BANGALORE-560 025
                                                            ...APPELLANT
            (BY SRI SURESH LOKRE, SENIOR COUNSEL APPEARING FOR
            SRI SHRAVAN S. LOKRE, ADVOCATE)
            AND:

            1.    ABDUL ALEEM
                  S/O ABDUL RASHEED,
                  AGED ABOUT 47 YEARS
Digitally         RESIDING AT NO.11, 3RD MAIN ROAD,
signed by
MALATESH          KALASIPALYAM NEW EXTENSION,
KC                BANGALORE.
Location:
HIGH
COURT OF    2.    SMT AROKYUA MARRY
KARNATAKA
                  (ARUL DAS)@ THIRUTHAMMAL,
                  W/O LATE V J ARUL DAS

            3.    SMT V J ELIZABETH
                  W/O LATE MICHAEL,

                  BOTH ARE RESIDING AT
                  C/O BABU ANI,
                  NO.68, 6TH CROSS,
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                                         NC: 2023:KHC:33246
                                     RFA No. 1703 of 2016




     MARKAM ROAD, ASHOKNAGAR,
     BANGALORE-560 025

4.   MOHAMMED MOHSIN
     AGED ABOUT 31 YEARS
     S/O LATE SHAKEEL AHMED

5.   SMT.HALEEMA SADIA
     AGED ABOUT 30 YEARS
     W/O MOHAMMED MOHSIN

     BOTH ARE RESIDING AT
     NO.3, OLD NO.64/A, PID NO.76-61-3
     6TH CROSS, MARKHAM ROAD,
     ASHOK NAGAR
     BANGALORE - 560 025.
                                            ...RESPONDENTS
(BY SRI V.SRINIVASAN, ADVOCATE FOR R1;
VIDE ORDER DATED 02.06.2017, NOTICE TO R2 AND R3 ARE
DISPENSED WITH;
SRI MOHAMED SHAFIULLA, ADVOCATE FOR R4 AND R5)


      THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 R/W SECTION 96 OF CIVIL PROCEDURE CODE AGAINST
THE ORDER DATED 31.08.2016 PASSED IN EX. NO.25025/2013
ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE,
MAYOHALL UNIT (CCH 29), BENGALURU, DISMISSING THE
APPLICATION FILED U/O XXI RULE 97 AND 99 R/W SECTION
47 AND 151 OF CPC., FOR DIRECTION.

      THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                   NC: 2023:KHC:33246
                                              RFA No. 1703 of 2016




                            JUDGMENT

Sri Suresh S. Lokre, learned Senior Counsel represents

the appellant. Sri V.Srinivasan, counsel represents the

contesting respondent.

2. After hearing the parties for some time, a memo came to

be filed by the appellant which reads as under:

"The Appellant submits as follows;

(A) The appellant state that pursuant to the passing of the Order in Ex.25025/2013 Dated; 31.08.2016, which is now under challenge since the Legal Rights of the Appellants has remained intact and there in the Ld. Judge while passing the impugned the Order Dated 31.08.2016 has held Point No.1 in the Affirmative and rejected the Application filed under Order XXI Rule 99 CPC solely on the Ground of being barred under the Article 128 of the Limitation Act.

(B) The Appellant further submits, that the contesting Respondents' Alienee have filed challenging my title over the Suit Property, in O.S.No.811/2018 now pending disposal on the file of the Addl. City Civil Judge at Bengaluru City CCH-13 as against the Appellants challenging the Judgment in O.S. No.10755/1995 and also relief of Declaration of ownership and for mandatory injunction. In respect of the Schedule Property, which belongs to the Appellant.

NC: 2023:KHC:33246 RFA No. 1703 of 2016

(C) The Appellant as advised, immediately on dispossession filed O.S.No.26320/2013 pending on the file of the Addl. City Civil Judge CCH-74 Mayohall Bengaluru City, for the relief of permanent injunction and subsequently sought for the relief of declaration and for restoration of possession of the Suit Schedule Property to the Appellant.

(D) The Appellant has filed a Misc. Petition No.887/2023 under Section 25 of the CPC to transfer and Club both the above Suits and Dispose the above suits together, but the contesting Respondent has filed objections on technical grounds and opposed the same.

(E) The Appellant further prays that this Hon'ble Court be pleased to direct Clubbing of both the above Suits to be tried before a single Court of Law, in order to avoid multiplicity of proceedings and Judgements and inter-alia, permit the Appellant to raise all the above contentions as raised in the application under Order 21 rule (99) of CPC in the above suits and seek requisite Reliefs in the said Suits, the above Suits may kindly be directed to be Disposed-off, within a time-frame, since the Appellant is presently aged about 87 years and has age-related health issues.

(F) The Appellant submits that after Dispossessing the Appellant the Original Decree Holder has sold the Suit schedule Property to the Respondents No.2 Mohammed Mohsin & Respondent No.3 Haleema Sadia who have filed O.S.No.811/2018 pending on the file of the CCH-13 and an Order Restraining Alienation or creating any

NC: 2023:KHC:33246 RFA No. 1703 of 2016

encumbrance be granted, as there will be avoidable multiplicity of proceedings.

(G) The Original Documents produced and marked as Exhibit P1 to Exhibit P 15 may kindly be Ordered to be Returned to the Appellant before the Registry of this Hon'ble High Court.

It is respectfully Prayed that this Hon'ble Court may kindly take the above facts into consideration, and pass appropriate Judgment in the above Appeal, in the Interest of Justice and equity."

3. Copy of the memo is furnished to the counsel for

contesting respondent.

4. The contesting respondent has filed a suit in

O.S.No.811/2018 which is now pending on the file of the V

Additional City Civil and Sessions Judge, Bengaluru. In the said

suit, contesting respondents have questioned the title of the

appellant herein. In other words, the question relating to title

in respect of the property involved in the present appeal and

the property involved in O.S.No.811/2018 being one and the

same, and O.S.No.811/2018 being the comprehensive suit, the

impugned judgment and decree that has been passed in

O.S.No.3324/2001 which was executed in Execution

No.25025/2013 and possession having been delivered in favour

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of decree holder therein and the same having been sold to

respondent Nos.4 and 5 in the present appeal, would be subject

to the judgment and decree that would be passed in

O.S.No.811/2018. In the meanwhile, appellant herein has also

filed O.S.No.26320/2013 questioning his dispossession from

the property. Same is also pending now before the Additional

City Civil Judge, CCH-24.

5. Sri Suresh S.Lokre, learned Senior Counsel though

submits that, if O.S.No.811/2018 and O.S.No.26320/2013 are

tried together for which Miscellaneous No.887/2023 is filed,

ends of justice would be met, it is in the exclusive jurisdiction

of the concerned Court where Miscellaneous No.887/2023 is

pending, to pass appropriate Order.

6. However, since the issues involved in O.S.No.811/2018

and O.S.No.26320/2013 are one and the same, if the cases are

tried by one and same Court, possibility of contradictory

judgment could be avoided. With this observation, memo is

accepted and appeal is disposed off in terms of the memo.

7. Counsel for appellant is permitted to obtain the original

documents from the records in Execution No.25025/2013

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wherein it is marked, by replacing the certified copies and

produce the same either in O.S.No.26320/2013 or in

O.S.No.811/2018 as the case may be.

Sd/-

JUDGE

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