Simultaneous adjudication of related suits is essential to prevent conflicting judgments regarding family property rights.

ORDER :

VIJAYKUMAR A. PATIL, J.

This petition is filed seeking the following reliefs:

a) Issue a writ or order or direction in the nature of Certiorari quashing the order dated 28.08.2017 passed on I.A.No.IV in O.S.No.138/2009 on the file of Additional Senior Civil Judge and JMFC, Athani produced as per Annexure-A.

b) Issue any other writ or direction which this Hon’ble deems fit to meet the ends of justice.

2. Smt.Surabhi Kulkarni, learned counsel appearing for the petitioner submits that the petitioner has filed O.S.No.11/2003 for relief of partition and separate possession with regard to the various properties, claiming that they are the joint family properties. It is submitted that during the pendency of the suit filed by the petitioner, respondent No.1 filed O.S.No.138/2009 seeking relief of declaration of title based on the Will dated 14.12.2006. It is submitted that the issue involved in O.S.No.11/2003 filed by the petitioner and the issue involved in O.S.No.138/2009 filed by respondent No.1 are substantially one and the same as the petitioner is contending that the petitioner is one of the son of Gurupadappa and he is entitled to his share in the properties of Gurupadappa and until the issue with regard to the entitlement of share is decided in the suit filed by the petitioner, the respondent No.1 cannot proceed with O.S.No.138/2009. It is submitted that the issue involved in O.S.No.138/2009 is with regard to the claim of right by the respondent No.1 based on the Will dated 14.12.2006 and if any finding is recorded in O.S.No.138/2009, the same would cause prejudice to the interest of other family members and there is a likelihood of conflicting judgment with regard to the same substantial issue involved in these suits. It is submitted that the other suits filed by other family members in O.S.No.127/2008 and 169/2007 are stayed by the trial Court in view of pendency of O.S.No.11/2003. Hence, she seeks to allow the petition by staying further proceedings in O.S.No.138/2009.

3. Per contra, Smt.P.S.Tadapatri, learned counsel for the respondents No.1 to 3 supports the impugned order of the trial Court and submits that the issue involved in O.S.No.11/2003 and O.S.No.138/2009 are distinct and the trial Court has rightly recorded the finding and dismissed the application filed by the petitioner under Section 10 of CPC which does not call for any interference. Hence, she seeks to dismiss the petition.

4. I have heard learned counsel for the petitioner, learned counsel for respondents No.1 to 3 and meticulously perused the material available on record.

5. The pleading and material on record indicate that the petitioner herein has filed O.S.No.11/2003 for relief of partition and separate possession and the said suit is pending before the Addl. Senior Civil Judge, Athani. The perusal of the plaint indicates that the petitioner is seeking partition of properties referred in Para 1 of the plaint. From para 4(a) onwards of the plaint, an assertion is made that all the properties are joint family properties of Gurupadappa who was a propositor and the plaintiff/petitioner is entitled to a share in those properties. The records further indicate that the respondent No.1 herein filed O.S.No.138/2009 seeking relief of declaration of title based on the Will dated 14.12.2006. Respondent No.1 is one of the sons of Tayappa and nephew of the petitioner herein. The issue involved in both the suits is with regard to the respective rights claimed by them based on the assertion made in the plaint. The petitioner in O.S.No.11/2003 is making an assertion that the properties referred to in the plaint are joint family properties and the petitioner is entitled to a share in the same. However, the respondent No.1 in O.S.No.138/2009 is asserting that his father Tayappa has executed a Will dated 14.12.2006 with regard to the properties referred to in the plaint. It is not in dispute that the properties involved in O.S.No.11/2003 and in O.S.No.138/2009 are substant