NARENDRA SHETTY Vs. SURENDRA SHETTY AND ORS.

JUDGEMENT

(1.) PETITIONER is the respondent in FDP No. 3/2012 on the file of the Senior Civil Judge at Kundapur, being aggrieved by the order dated 27 -11 -2014 rejecting I.A. No. 6 filed under Section 10 and Section 151 of CPC seeking for staying the further proceedings in FDP No. 3/2012, till disposal of O.S. No. 270/2013 on the file of the Principal Civil Judge, Kundapur, filed this writ petition.

(2.) THE petitioner herein filed a suit in O.S. No. 76/2003 seeking for partition and separate possession of the joint family properties seeking for passing of a preliminary decree contending that there was no partition of joint family properties by metes and bounds. The family members intended to partition the properties and all the parties are entitled to their respective shares. The contesting defendants raised objections to the said partition and the said partition suit ended in compromise before the Lok Adalath on 28 -01 -2006. Thereafter, a preliminary decree was drawn on 7 -2 -2006. Since the plaintiff has not filed an application for drawing up of final decree proceedings, the defendants 1 and 3 in O.S. No. 76/2003 initiated final decree proceedings in FDP No. 3/2012 on 25 -01 -2012. The petitioner herein filed objections to the said FDP. After over -ruling the objections, the Court Commissioner was appointed to effect partition and to measure the properties. The Commissioner after holding necessary enquiry submitted a report dated 9 -1 -2013. The petitioner filed objections to the said Commissioner report stating that the measurement is not in accordance with law. In view of the objection raised by the petitioner, the matter was once again referred to the Commissioner. Subsequently, the Commissioner submitted a report after considering the objections of the petitioner on 7 -10 -2013. When the matter stood thus, the petitioner filed O.S. No. 270/2013 impleading defendants 1 and 3 in O.S. No. 76/2003, contending that while searching the old steel trunk of his mother on 29 -09 -2013 he traced an unregistered Will dated 16 -12 -1986. In the said Will the house property i.e. item Nos. 9, 10 and 11 of the suit schedule properties was bequeathed in his favour, since he could not trace the said Will earlier, the said three items of the properties cannot be partitioned. In the suit, he sought for declaration that the plaintiff has become the absolute owner of 'A' schedule property as per the Will dated 16 -12 -1986 executed by his mother Smt. Rathnavathi Shedthi. Consequently sought for permanent injunction restraining his brothers defendants 1 and 3 from interfering with his peaceful possession and also for other reliefs. In the meanwhile, the petitioner filed I.A. No. 6 in FDP No. 3/2012 seeking for stay of the further proceedings in the final decree proceedings till disposal of the subsequent suit O.S. No. 270/2013 contending that if the final decree proceedings is proceeded with and the shares are allotted as per the final decree, that will adversely affect his interest. As per the unregistered Will dated 16 -12 -1986, the mother of the petitioner has bequeathed item Nos. 9, 10 and 11 of 'B' schedule property and the same is allotted to his share. Hence sought for stay of further proceedings in FDP.

(3.) THE Trial Court after examining the matter in detail, taking into consideration the contentions raised by both the parties found that the mother of the petitioner died in the year 1987 and sister also died in the year 2004. Apart from that, the petitioner himself filed a suit seeking for partition in the year 2003 and the said partition suit ended in compromise. After lapse of 26 years, the petitioner came up with the Will stating that out of love and affection on him, his mother had executed a Will dated 16 -12 -1986 and while he was searching old steel trunk, he was able to trace out the said Will on 29 -09 -2013. In the said Will, item Nos. 9, 10 and 11 of 'B' schedule property has been bequeathed in his favour, on the basis of the said Will, he filed a suit seeking for declaration declaring that he is the absolute owner of the said property. The said Will cannot be relied upon. If the mother of the petitioner was staying with petitioner, nothing prevented him to find out the Will immediately after her death and 26 years is not required for the same. In the partition suit filed by the petitioner, the brothers of the petitioner have asked for share in item Nos. 9, 10 and 11 of the 'B' schedule property. In order to deny their share, the petitioner has set up this Will. Hence, the petitioner is not entitled for an order of stay of further proceedings in FDP No. 3/2012. The Trial Court also examined Sections 10 and 151 of CPC and held that in order to get the benefit under Section 10 of CPC, they have to fulfill essential ingredients in Section 10 of CPC. In the instant case, the matter in issue is entirely different. The earlier suit was filed seeking for partition of the joint family properties and the subsequent suit is filed for declaration, declaring that the petitioner is the absolute owner of three items of 'B' schedule property in the joint family properties. The parties are not same, except two persons, other persons are not made parties in the second suit. Further the suit must be pending in the same court. In the instant case, the suits are pending before two different courts and the subject matter in both the suits in entirely different. The case pleaded by the petitioner does not fall under the essential conditions mentioned in Section 10 of CPC. Accordingly, dismissed the said application. Being aggrieved by the same, the present writ petition is filed.