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Friday, March 25, 2016

This Court in Vidya Devi v. Prem Prakash[7] held that: “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time rescribed by law.” In Civil Suit O.S. No. 404 of 1962, filed by the plaintiff in the court of VII Assistant City Civil Judge, it was the stand of the plaintiff that she had been dispossessed from the property in the year 1957. Defendant had taken a plea at paragraph-14 of the written statement that “after the death of Kotilingaraja in 1955, the property vested on his son Chandrasekaralingam and after his death in 1956 on his son this defendant, since then this defendant has been in exclusive possession and enjoyment of the suit property paying the property tax etc., with the patta in his name”. At Paragraphs-28 and 29 of the written statement also, the defendant had taken a specific plea on hostile animus and exclusive possession. The averments read as follows:This defendant submits that for the past 30 years and more he has been in exclusive possession of the suit property and Plaintiff’s claim is also barred by adverse possession and limitation.This defendant states that Patta over the suit property has been ordered to be registered in his name and the claim of this plaintiff was rejected by the Settlement Enquiry Tahsildar, by his order dated 14.11.1959, after due enquiry and notice to parties.”The above being the emerging true factual and correct legal position, with a view to putting an end to five decades old disputes between a sister and brother, to avoid any further litigation and to get the families to reconcile and restore peace, we put a suggestion for a reasonable settlement. Thanks to the sincere cooperation extended by Sri Viswanathan, learned Senior Counsel for the appellant, Sri V. K. Shukla, learned Counsel for the respondent and the cooperation extended by the parties themselves, it is heartening to note that a solution has evolved. Accordingly, it is ordered that the appellants shall be entitled to 35% and the respondent 65%. Let the suit property be accordingly partitioned. If it is found that it is not possible to do so by metes and bounds, let the property be sold and proceeds shared accordingly. We direct the Principal City Civil Judge, Madras to take the required steps to work out this order and finalise everything expeditiously, and in any case, within three months from the date of production of a copy of this judgment. The appeals are disposed of accordingly.


                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                     CIVIL APPEAL NOS. 1858-1859 OF 2016
               (Arising from S.L.P. (C) Nos. 10449-10450/2009)


NAGABHUSHANAMMAL (D) BY LRS.            … APPELLANT (S)

                                   VERSUS

C. CHANDIKESWARALINGAM                  … RESPONDENT (S)


                               J U D G M E N T

KURIAN, J.:



Delay condoned. Substitution allowed. Leave granted.


 Res judicata,  partition,  ouster  and  adverse  possession  are  the  four
principles interestingly arising in the present case.

SHORT FACTS

Parties  are  referred  to   as   plaintiff   and   defendants.   Appellant-
Nagabhushanammal,  since  deceased  and  substituted  by  her  legal   heirs
(daughter of  deceased  Kotilingaraja  and  Veerammal),  filed  a  suit  for
partition, O.S. No. 2062 of 1988 before the City Civil  Court,  Madras.  The
suit property situated  at  No.  4,  Govindarajulyu  Naidu  Street,  Agaram,
Madras-82 was purchased by the plaintiff’s mother Veerammal from her father-
in-law and his two  sons  under  a  sale  deed  dated  16.09.1919  (Document
No.1919, SRO, Sembium) from out  of  her  own  funds.  Veerammal  had  three
children, the plaintiff, the first defendant’s father  named  Chandrasekaran
and one Neelagandammal. Veerammal, the original owner of the  suit  property
died in 1922 leaving  behind  her,  the  plaintiff  and  her  brother,  late
Chandrasekaran, the other daughter Neelagandammal  having  pre-deceased  her
mother Veerammal. After the death of Veerammal, the property vested  equally
on the plaintiff and Chandrasekaran, the defendant’s father.  On  the  death
of Chandrasekaran in 1956, his half share of the  suit  property  vested  on
the defendant and his  mother  Saradhambal,  the  widow  of  Chandrasekaran.
According to the plaintiff,  in  or  about  1961,  the  plaintiff’s  husband
realized that Veerammal, the owner of the property had settled the  property
in his  name  by  registered  document  dated  06.02.1954.  He  settled  the
property in  his  wife’s  (the  plaintiff’s)  name.  This  was  resented  by
defendant’s  mother,  Saradambal.  That  necessitated  the  filing  by   the
plaintiff of a suit O.S. No. 404 of 1962 on the  file  of  the  VII  Assit.,
City Civil Judge, Madras praying for possession  of  suit  property  on  the
basis of the settlement  made  by  the  said  Veerammal  and  later  by  her
husband. The learned  Judge  refused  to  believe  the  genuineness  of  the
settlement made by Veerammal in favour of her  son-in-law,  K.  Subramanian,
the husband of the plaintiff and hence dismissed the suit on 24.08.1964.

Thereafter, the plaintiff filed the present suit in 1988 for partition.

The defendant, in the written statement, mainly contended that the suit  for
partition is not maintainable and is hit by Section 11 of The Code of  Civil
Procedure, 1908 on the principle of res  judicata.  It  was  his  case  that
after the death of Kotilingaraja in 1955, the property  vested  on  his  son
Chandrasekaran, after his death in 1956, on his son the defendant and  since
then the defendant has been in exclusive possession  and  enjoyment  of  the
suit property paying the property tax, etc., with patta in his name.

A specific contention was also taken that the plaintiff  did  not  have  any
right in the property and that as to the date of  the  suit,  the  defendant
had been in exclusive possession of the suit property for more  than  thirty
years, and hence, the suit was liable to  be  dismissed  on  the  ground  of
adverse possession and limitation as well.



The following issues were framed by the trial court:

“1.   Whether the suit property is liable to be partitioned?

2.    Whether  the  Plaintiff  is  entitled  for  half  share  in  the  suit
property?

3.    Whether the Defendant is  liable  to  render  accounts  for  the  suit
property?

4.    Whether the suit is affected by res judicata?

5.    To what relief the Plaintiff is entitled?”



The trial court held that the suit for partition was hit  by  the  principle
of res judicata in view of the dismissal of the earlier suit, O.S.  No.  404
of 1962, referred to hereinabove. The defence  of  adverse  possession  also
was upheld and the suit was thus dismissed by judgment dated 14.08.1990.

In the first appeal, A.S. No. 271 of 1990 on the  file  of  the  City  Civil
Court, Chennai, the judgment of the trial court was reversed  and  the  suit
was decreed. According to the first appellate court, the decree in O.S.  No.
404 of 1962, a suit for possession and  injunction  based  on  a  settlement
deed executed by the husband of  the  plaintiff,  was  not  a  bar  for  the
plaintiff’s suit for partition. It was held that the nature of the suit  was
different, issues were different and the whole basis of the  suit  was  also
different. On adverse possession, the first appellate court  held  that  the
plaintiff and defendant were entitled  to  succeed  to  the  extent  of  the
property of  their  mother,  after  the  death  of  their  father  and  that
plaintiff and defendant are co-owners in joint possession under law.  Unless
one of the co-owners, in the present case, the plaintiff,  had  been  ousted
in accordance with law, the plaintiff could claim the  partition  and  there
is no question of adverse possession.

The defendant took up the matter before the High Court in second  appeal  in
S.A. No. 1792 of 1992 leading to the  impugned  judgment  dated  17.01.2008.
The second appeal was admitted on  the  following  substantial  question  of
law:

“Whether the Lower Appellate Court was right in the view it  took  that  the
Appellant has not established prescriptive title to the property?”



Later, the  following  additional  substantial  question  of  law  was  also
formulated:

“Is not the Plaintiff in the present Suit bound by  her  admission  made  in
the Plaint filed by her in O.S. No. 404/1962  regarding  dispossession  from
the year 1957?”







The High Court was of the view that:

“16.  The right of the parties was directly in  issue  in  earlier  Suit  in
O.S. No. 404/1962.  As discussed earlier in  O.S.  No.  404/1962,  Plaintiff
claimed right in the entire Suit Property and  sought  for  declaration  and
possession. Saradhambal resisted the Suit claiming  possession  and  setting
up right in herself. Having regard to the  nature  of  plea  taken  by  both
parties,  dismissal  of  O.S.  No.   404/1962   is   a   strong   militating
circumstances against the Plaintiff and maintainability of the Suit in  O.S.
No. 2062/1988.  The  right  and  title  of  the  parties  was  directly  and
substantially in issue in O.S. No. 404/1962. As per Sec.11 of  CPC,  if  the
matter was in issue directly and substantially in  a  prior  litigation  and
decided against a party then  the  decision  would  be  res  judicata  in  a
subsequent proceeding. In any event the filing of subsequent Suit  O.S.  No.
2062/1988 is nothing but re-litigation. After putting the case in  one  way,
then putting the case in other way  is  nothing  but  abuse  of  process  of
Court, which was not kept in view by the trial Court.”



On adverse possession, despite beautifully summing up the legal position  at
paragraph-20 in the following lines,:

“20.  … To sum up, the  basic  distinction  between  adverse  possession  as
between strangers and ouster and exclusion of co-owners,  the  law  is  well
settled that as between co-owners, there  could  be  no  adverse  possession
unless there has been a denial of title and an ouster to  the  knowledge  of
the other.”



the High Court entered a finding that the possession of  the  suit  property
by the defendant continuously since 1956  has  become  adverse  to  that  of
plaintiff. This finding by the High court is based on the averment  made  by
the plaintiff in the suit that the defendant  therein  had  trespassed  into
the suit property in 1956. In any case, according to the High  Court,  after
dismissal of O.S. No. 404 of 1962, the possession of  the  property  by  the
defendant had become adverse to the  plaintiff.  Accordingly,  the  judgment
and decree of the first appellate court was set aside and that of the  trial
court, dismissing the suit for partition, was  restored  and  second  appeal
was allowed. Aggrieved, the present appeal.

‘Res judicata’ literally means a “thing adjudicated” or “an issue  that  has
been definitively settled by judicial decision”.[1]  The principle  operates
as a bar to try the same issue once over. It aims  to  prevent  multiplicity
of proceedings  and  accords  finality  to  an  issue,  which  directly  and
substantially had arisen in the former suit  between  the  same  parties  or
their privies and was decided and has become final, so that the parties  are
not vexed twice over; vexatious litigation is put an  end  to  and  valuable
time of the court is saved. (See Sulochanna Amma v. Narayanan Nair[2])

 In Jaswant Singh v. Custodian of Evacuee Property[3], this Court  has  laid
down a test for determining whether a  subsequent  suit  is  barred  by  res
judicata:


“…In order that a defence of res judicata may succeed  it  is  necessary  to
show that not only the cause of action  was  the  same  but  also  that  the
plaintiff had an opportunity of getting the relief which he is  now  seeking
in the former proceedings. The test is whether the claim in  the  subsequent
suit or proceedings is in fact founded upon the same cause of  action  which
was the foundation of the former suit or proceedings….”



The expression ‘cause of action’ came to be interpreted  by  this  Court  in
Kunjan Nair Sivaraman Nair v. Narayanan Nair[4], at paragraph-16. To quote:



“16. The expression “cause of action”  has  acquired  a  judicially  settled
meaning. In the restricted sense cause of  action  means  the  circumstances
forming the infraction of the  right  or  the  immediate  occasion  for  the
action. In the wider sense,  it  means  the  necessary  conditions  for  the
maintenance of the suit, including not only the  infraction  of  the  right,
but  the  infraction  coupled  with  the  right  itself.  Compendiously  the
expression means every fact which would be necessary for  the  plaintiff  to
prove, if traversed, in order to support his right to the  judgment  of  the
court. Every fact which is necessary to be  proved,  as  distinguished  from
every piece of evidence which is necessary to prove each fact, comprises  in
“cause of action”.”




In Halsbury’s Laws of England(4th Edition), the expression has been  defined
as follows:
“‘Cause of action’ has been defined as meaning simply  a  factual  situation
the existence of which entitles one  person  to  obtain  from  the  court  a
remedy against another person. The phrase has been held from  earliest  time
to include every fact  which  is  material  to  be  proved  to  entitle  the
plaintiff to succeed, and every fact which a defendant would  have  a  right
to traverse. ‘Cause of action’ has also been taken to mean  that  particular
act on the part of the defendant which gives  the  plaintiff  his  cause  of
complaint, or the subject-matter  of  grievance  founding  the  action,  not
merely the technical cause of action.”




The suit filed by the plaintiff  in  1962,  based  on  the  settlement  deed
executed by her husband in her favour and the sufferance  of  the  dismissal
of the suit, will not, in any way, be a bar  for  making  a  claim  for  her
share, if any, of the family property, if otherwise permissible  under  law.
As succinctly addressed by the first appellate court, the 1962 suit for  the
entire property was based on a  settlement  deed  and  it  was  a  suit  for
possession. Whereas, the 1988 suit for partition was  for  plaintiff’s  one-
half share in the property based on her birth  right.  Cause  of  action  is
entirely different.

Thus, the High Court in our opinion  is  not  right  on  the  point  of  res
judicata.

The other main defense in the suit is ouster and  limitation.  Ouster  is  a
weak defense in a suit for partition of family property and it is strong  if
the defendant is able to establish consistent and open assertion  of  denial
of title, long  and  uninterrupted  possession  and  exercise  of  right  of
exclusive ownership openly and to the knowledge of the other co-owner

This court in Syed Shah Ghulam Ghouse Mohiuddin  and  others  v.  Syed  Shah
Ahmed Mohiuddin Kamisul Quadri and Ors[5] held that possession  of  one  co-
owner is presumed to be on behalf of all co-owners unless it is  established
that the possession of the co-owner is in denial of title of  co-owners  and
the possession is in hostility to co-owners by exclusion  of  them.  It  was
further held that there has to be open denial of title to  the  parties  who
are entitled to it by excluding and ousting them.

A three judge bench of this court in P.Lakshmi Reddy v. R.Lakshmi  Reddy[6],
while examining the necessary conditions for applicability  of  doctrine  of
ouster to  the shares of co-owners, held as follows:
“4. Now, the ordinary classical requirement of adverse  possession  is  that
it should be  nec vi nec clam  nec  precario. (See Secretary  of  State  for
India v. Debendra Lal Khan [ (1933) LR 61  IA  78,  82]  ).  The  possession
required must be adequate in continuity, in publicity and in extent to  show
that  it  is  possession   adverse   to   the   competitor.   (See Radhamoni
Debi v. Collector of Khulna [ (1900) LR 27 IA 136, 140] ). But it  is  well-
settled that in order to establish adverse  possession  of  one  co-heir  as
against another it is not enough to show that one out of  them  is  in  sole
possession and enjoyment of the profits of the  properties.  Ouster  of  the
non-possessing  co-heir  by  the  co-heir  in  possession  who  claims   his
possession to be adverse, should be made out. The possession of one  co-heir
is considered, in law, as possession of all the co-heirs. When  one  co-heir
is found to be in possession of the properties it is presumed to be  on  the
basis  of  joint  title.  The  co-heir  in  possession  cannot  render   his
possession adverse to the other co-heir not  in  possession  merely  by  any
secret hostile animus on his own part in derogation of the  other  co-heir's
title. (See Cores v. Appuhamy  [(1912) AC 230)]. It is  a  settled  rule  of
law that as between co-heirs there must be evidence  of  open  assertion  of
hostile title, coupled with exclusive possession and  enjoyment  by  one  of
them to the knowledge of the other so as to  constitute  ouster.  This  does
not necessarily mean that there must be an express demand by one and  denial
by the other.”






This Court in Vidya Devi v. Prem Prakash[7] held that:
“28. ‘Ouster’ does not mean actual driving out of  the  co-sharer  from  the
property. It will, however, not be complete unless it is  coupled  with  all
other  ingredients  required  to  constitute  adverse  possession.   Broadly
speaking, three elements are necessary for establishing the plea  of  ouster
in the case of co-owner. They are (i) declaration of  hostile  animus,  (ii)
long and uninterrupted possession of the person pleading ouster,  and  (iii)
exercise of right of exclusive ownership openly  and  to  the  knowledge  of
other co-owner. Thus, a co-owner, can under  law,  claim  title  by  adverse
possession against another co-owner who can,  of  course,  file  appropriate
suit including suit for joint possession within time rescribed by law.”






In Civil Suit O.S. No. 404 of 1962, filed by the plaintiff in the  court  of
VII Assistant City Civil Judge, it was the stand of the plaintiff  that  she
had been dispossessed from the property in  the  year  1957.  Defendant  had
taken a plea at paragraph-14 of the written statement that “after the  death
of   Kotilingaraja   in   1955,   the   property   vested   on    his    son
Chandrasekaralingam and after his death in 1956 on his son  this  defendant,
since then this defendant has been in exclusive possession and enjoyment  of
the suit property paying the property  tax  etc.,  with  the  patta  in  his
name”.   At  Paragraphs-28  and  29  of  the  written  statement  also,  the
defendant had  taken  a  specific  plea  on  hostile  animus  and  exclusive
possession. The averments read as follows:

“28.  This defendant submits that for the past 30  years  and  more  he  has
been in exclusive possession of the suit property and Plaintiff’s  claim  is
also barred by adverse possession and limitation.





29.   This defendant states that Patta  over  the  suit  property  has  been
ordered to be registered in his name and the claim  of  this  plaintiff  was
rejected  by  the  Settlement  Enquiry  Tahsildar,  by   his   order   dated
14.11.1959, after due enquiry and notice to parties.”



The above being the emerging true factual and correct legal  position,  with
a view to putting an end to five decades old disputes between a  sister  and
brother, to avoid  any  further  litigation  and  to  get  the  families  to
reconcile  and  restore  peace,  we  put  a  suggestion  for  a   reasonable
settlement.  Thanks to the sincere cooperation extended by Sri  Viswanathan,
learned Senior Counsel for the appellant, Sri V. K. Shukla, learned  Counsel
for the respondent and the cooperation extended by the  parties  themselves,
it is heartening to note that a solution has evolved.   Accordingly,  it  is
ordered that the appellants shall be entitled  to  35%  and  the  respondent
65%.  Let the suit property be accordingly partitioned. If it is found  that
it is not possible to do so by metes and bounds, let the  property  be  sold
and proceeds shared accordingly.  We direct the Principal City Civil  Judge,
Madras to take the required steps  to  work  out  this  order  and  finalise
everything expeditiously, and in any case,  within  three  months  from  the
date of production of a copy of this judgment. The appeals are  disposed  of
accordingly.



There shall be no order as to costs.


                                                           ……………..……………………J.
                                                                     (KURIAN
JOSEPH)

                                                           ……………..……………………J.
                                                     (ROHINTON FALI NARIMAN)
New Delhi;
February 26, 2016.
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[1]    Black’s Law Dictionary, 8th Edition, p.1337
[2]    (1994) 2 SCC 14
[3]    (1985) 3 SCC 648
[4]    (2004) 3 SCC 277
[5]    (1971) 1 SCC 597
[6]    AIR 1957 SC 1789
[7]    (1995) 4 SCC 496

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                                                                  REPORTABLE


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