The court has inherent power to consolidate suits in certain circumstances, and the jurisdiction to do so does not depend on the consent of the parties.

Madan Mohan Prasad, J.

1. This is an application under Sec.24 of the Code of Civil Procedure (hereinafter referred to as the Code) for transfer of a case from Bhagalpur to Purnea and with a further prayer for consolidation of that suit with another suit pending in the Court of Purnea,

2. It appears that the opposite party filed Title Suit No. 168 of 1970 in the court of the Subordinate Judge at Purnea for partition of certain ancestral properties; the first petitioner and the first opposite party being brothers. Of the properties mentioned therein, it is said that all the properties are situate in the district of Bhagalpur except one property in Purnea. The defendant-petitioners claim that both the parties are really residents of Bhagalpur. The defence of these petitioners in that suit is that there had been a previous partition already in the year 1954 that a memorandum of partition had been drawn up and signed by various witnesses of Bhagalpur and that a few properties like ancestral house and such other had been purposely kept joint between the parties. It is said that the aforesaid suit is ripe for hearing and. in fact, one witness for the plaintiffs has also been "examined.

3. Another suit being Title Suit No. 16 of 1972 has been filed by the petitioners in the court of Subordinate Judge at Bhagalpur for partition of the properties which, according to them, had been left joint between the parties after the previous partition between the brothers which had taken place in the year 1954. Notices have been issued on the defendants in this suit but they have not yet appeared

4. It appears that the petitioners came up to this Court earlier for transfer of the suit pending in the court of the Subordinate Judge of Purnea to the court of the Subordinate Judge at Bha-galpur which was registered as M.J.C. No. 23 of 1972 and was summarily dismissed by this Court on the 24th February 1972. Having thus failed to get the suit of Purnea brought to the court at Bhagalpur, it appears, the present application has been filed for transfer of the suit at, Bhagalpur in which the petitioners are plaintiffs to the court of the Subordinate Judge at Purnea. The petitioners have further prayed, as stated earlier, that this present suit be also transferred to the court of the same Subordinate Judge to be tried analogous with Title Suit No. 168 of 1970.

5. Learned counsel for the petitioners has urged that the parties are common, the defence will be common to both the suits, the issues to be decided substantially will be the same, the evidence to be adduced in the two cases will also be more or less common and in the circumstances aforesaid these suits are fit to be tried together by the same court. Learned counsel for the opposite party has. however, urged that an analogous trial of the two suits will lead to delay in the disposal of the suit in which the opposite party are plaintiffs in view of the stage it has already reached and the present stage of the present suit. It is also said that the opposite party are plaintiffs in Title Suit No. 168 of 1970 aforesaid and, therefore, they should have the right to choose their own forum and unless they consent to the consolidation of the two suits, it ought not to be allowed.

6. I am afraid. I am unable to accept the proposition urged by learned counsel for the opposite party. From the nature of allegations in the two suits and the defence taken up by the present opposite party in one of the two suits, it is quite obvious that the main dispute between the parties would centre round the question as to whether or not there had been a previous partition. The fact that they are two brothers, that they had ancestral properties and that in case there has been no previous partition, a partition would be necessary, are not disputed questions. The parties in both the two suits are the same. It is also evident from the circumstances of this case that the evidence adduced would be more or less common. Further