G. KRISHNA MURTHY, J.

( 1 ) , Counsel for the petitioners and Sn s Ramachandra Rao, Counsel for the respondents.

( 2 ) THIS petition is filed seeking transfer of O. S. No. 161 of 2000 on the file of principal Junior Civil Judge, Peddapuram to the Court of II Additional Judge, rajahmundry for being tried along with o. S. No. 7 of 2002.

( 3 ) THE 1st petitioner is the brother of 2nd petitioner. Their case in the affidavit filed in support of the transfer petition is that the 1st respondent filed O. S. No. 161 of 2000 on the file of Junior Civil Judge, peddapuram against the petitioners and respondents 2 to 5 herein for permanent injunction, restraining them and their men from interfering with the plaint schedule, which is an extent of Ac. 1-80 cents covered by S. No. l7/lc of Yerrampalem village, Gondepalli Mandal, East Godavari district, basing on the will dated 19-6-2000, alleged to have been executed by late yeleti Dhanayya, who is the father of the petitioners and 6th respondent. The petitioners have filed written statement in the said suit and denied the claim of the 1st respondent. Subsequently, during the pendency of the said suit, the 1st respondent and Respondents 6 to 10 herein filed another suit m O. S. No. 7/2002 on the file of n Additional District Judge, Court, Rajahmundry against the petitioners and Respondents 2 to 5 herein for partition of Item No. 1 of the plaint schedule properties into three equal shares and allotment of one such share to the Respondent No. 6 and also for mesne profits till the delivery of his share and also for declaration that the Respondent No. l and Respondents 7 to 10 herein are absolute owners and are in position of their respective items of the plaint schedule and for consequential permanent injunction restraining the defendants therein, from interfering with the possession and enjoyment of Item Nos. n to IV of the plaint schedule and for such other reliefs It is stated that the petitioners filed written statement and denied the claim of the plaintiffs therein. It is stated that the plaint schedule property in O. S. No. 161 of 2000 is only one item and the said item is covered in the suit in O. S. No 7 of 2002 on the file of n Additional District Judge, rajahmundry and the said suit is a comprehensive suit. It is further stated that the petitioners filed Tr. O. P. No. 813 of 2005 on the file of Principal District Judge, East godavan District, Rajahmundry to transfer the suit in O. S. No. 161/2000 on the file of junior Civil Judge, Peddapuram to the n Additional District Judge, Rajahmundry for being tried along with O. S. No. 7/2002, but the same was dismissed on 23-8-2005 on the sole ground that the petition is belated. It is finally stated that since the suit property in O. S. No. 161/2000 is covered in O. S. No. 7/2002 and in both the suits, since the alleged will dated 19-6-2000 is being relied upon, in order to avoid conflicting judgments, the petitioners sought for transfer.

( 4 ) THE 1st respondent filed counter and mainly stated that since the Tr. O. P. No. 813/2005 which was for the same relief, was dismissed by the Principal District judge, East Godavan, Rajahmundry, again the present transfer petition for the very same relief is not maintainable and the same is hit by the principles of res judicata. It is stated that though Section 24 of C. P. C. provides for concurrent exercise of power by District Court and High Court, this exercise of discretionary power cannot be exercised by both Courts simultaneously. It is further stated that all the parties in o. S. No. 7/2002 are not parties to O. S. No. 161/2000 and that the trial in O. S. No 161/2000 has already commenced and p. Ws. 1 and 2 were cross-examined and p. Ws. 3 and 4 are to be cross-examined and if the suit is transferred at this stage and clubbed with OS. No. 7/2000, the entire depositions may have to be eschewed and fresh trial may have to start which would unreasonably delay O. S. No. 161/2000. Further there is unreas

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