suit for declaration and partition - auction purchaser of brother's share claimed adverse possession- records shows joint possession - no adverse possession proved - plaintiff entitled for decree= it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co­ defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendant’s father and consequently to the defendant. On the other hand, it is apparent that the defendant’s father had right over only half of the property in question, which he had purchased. 14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor ­in ­interest had possession over the entire property to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs’ father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of 22 possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A­7, A­8 and A­9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs’ predecessor. ‘A schedule’ property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. ‘A Schedule’ has been made in favour of the second plaintiff as per Exhibit A­40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of ‘A Schedule’ property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.

                             Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5276 OF 2008
Govindammal (Dead) By Lrs. and Ors.      ...Appellants
Versus
Vaidiyanathan and Ors.                 ...Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The   legal   representatives   of   the   original   defendant   in   O.S
No.45/85 on the file of the Subordinate Judge, Cuddalore are the
appellants   before   this   Court.   For   the   sake   of   convenience,   the
parties are referred by their status before the Trial Court.
2 The   suit   was   filed   by   the   respondents   herein,   seeking   a
declaration that ‘A schedule’ property (as described in the plaint)
belongs to them or in the alternative for partition of half share in ‘B
1
schedule’ property (as described in the plaint) of which ‘A schedule’
is   a   part.   According   to   the   plaintiffs   (respondents   herein),   the
properties originally belonged to two brothers namely, Pazanivelu
Mudaliar  and   Chokalingam;  Pazanivelu   Mudaliar  had   two   sons,
namely, Narayanaswamy Mudaliar and Manickam. Narayanaswamy
had a son named Gnanasambandam Mudaliar. The plaintiffs are
the   grandsons   of   Narayanaswamy   being   the   sons   of
Gnanasambandam. On 21.7.1912, partition took place between the
branches of Pazanivelu and Chokalingam, and the same was signed
by   Narayanaswamy  (since  Pazanivelu  had   expired   by  then)   and
Chokalingam.   In   the   said   partition,   ‘A   schedule’   property was
allotted to Narayanaswamy and Manickam (who was then a minor),
while the remaining 50% of the property left in ‘B schedule’ was
allotted to Chokalingam. It is relevant to note here itself that the
suit property totally measured 3.18 acres at the time of partition in
1912, which subsequently got reduced to 2.72 acres in view of
natural calamities, sale of certain portions and resettlement etc.
Thus, the share of each branch was reduced to 1.36 acres each.
The   property   consisted   of   Survey   No.   67.   Narayanaswamy   and
2
Manickam being the sons of Pazanivelu Mudaliar partitioned the
property allotted to the branch of their father in such a manner so
as   to   allot   the   entire   ‘A   Schedule’   property   to   Manickam,   on
5.4.1933, as per Exhibit A­39. The said property allotted in favour
of   Manickam   was   sold   by   him   to   one   Appavu   Mudaliar   on
11.9.1940     as   per     Exhibit     A­2.   On   26.2.1942,   the   property
purchased   by   Appavu   Mudaliar was   in   turn   sold   in   favour   of
Sambandam Mudaliar. On 9.2.1950, the property purchased by
Sambandam Mudaliar was sold to Narayanaswamy Mudaliar as per
Exhibit A­3. After the death of Narayanaswamy   Mudaliar in the
year 1965, the plaintiffs being the grandsons of Narayanaswamy
Mudaliar inherited the whole ‘A schedule’ property.
Meanwhile,   Chokalingam’s   half   share   was   sold   in   a   court
auction   on   21.12.1933   and   was   purchased   by   the   original
defendant’s father. There are no records to show that there was
delivery of possession pursuant to the court auction sale; at any
rate, the court sale could not confer more than the right, title and
interest   of   the   judgment   debtor,   namely   Chokalingam’s   half
interest, which is 1.36 acres out of 2.72 acres recorded in the
3
resettlement. Unfortunately, the entire ‘B Schedule’ property which
was partitioned in 1912 was never demarcated inasmuch as the
same  was always used as  a house site. Since  the  resettlement
proceedings in 1976, this property comprises 3 pattas numbers.
The plaintiffs’ father had also been paying house tax. The defendant
had no right in ‘A schedule’ property. The defendant’s father and
consequently the defendant did not have any right over the property
in   excess   of   Chokalingam’s   half   share,   i.e.,   1.36   acres.   On
5.11.1978, in the partition in the family of the plaintiffs and their
father, the ‘A Schedule’ property was allotted to Plaintiff No.2 as per
Exhibit A­40. Since the defendant attempted to trespass into the
south western portion of the suit property (which falls under ‘A
Schedule’) and prevented the plaintiffs from enjoying the same, the
suit came to be filed.
The case of the defendant is that his father purchased the
entire   extent   of   Survey   Number   67,   i.e.,   2.72   acres   in   a   court
auction   (in   execution   of   the   decree   in   O.S.No.   20   of   1918)   on
21.12.1933, which was confirmed on 29.9.1934, and possession
was delivered to him; after his father’s death in 1940, the defendant
4
continued   to   be   in   possession.   In   the   year   1975,   Shri
Puthumariamman Temple, Kurinjipadi filed O.S. No. 66 of 1975
against the defendant and Gnanasambandam Mudaliar (the father
of the plaintiffs) in respect of the said property. The said suit came
to   be   dismissed,   holding   that   the   temple   had   no   right   to   the
property and that the defendant and his father were entitled to the
same. The appeal filed by the temple also came to be dismissed.
Thus, the title of the defendant and his father was upheld in the
litigation wherein the father of the plaintiffs was a co­defendant
along with the defendant as stated above. Subsequently, the SKV
High School filed O.S. No. 1289/1974 for declaration of its title over
the property, claiming that it had got title over the entire property.
The   defendant   filed   O.S.   No.   1290/1974   against   the   SKV   High
School. The father of the plaintiffs was one of the defendants in O.S.
No.1289/1974 filed by the school whereas he was not made party
by the defendant in O.S. No.1290/1974.  After joint trial in both the
suits, the suit filed by the present defendant was decreed declaring
his title over the suit property, and the suit filed by the school was
dismissed.   Such   judgment   of   the   Trial   Court   was   confirmed   in
5
appeal. The defendant denied the validity of the subsequent sale
deeds dated 11.9.1940 and 9.2.1950 in his written statement. Even
the later partition dated 5.11.1978 was attacked as a fraudulent
and collusive transaction. The defendant claimed to be in exclusive
possession of the entire property from the date of the court auction,
i.e., from 1933 continuously, and that he had acquired right by
adverse possession. It was also pleaded by the defendant that the
defendant’s title has already been declared twice by the Civil Court
as mentioned supra and therefore, the present suit is barred by the
principles   of  res   judicata.   The   claim   of   joint   possession   by   the
plaintiffs was denied by the defendant.
3. On a full­fledged trial, the Trial Court decreed the suit and
granted the alternative relief of partition. In the first appeal filed by
the defendant, the learned Single Judge reversed the judgment of
the Trial Court and dismissed the suit. The Letters Patent Appeal
filed by the plaintiffs was allowed by the impugned judgment and
consequently the suit came to be decreed by the Division Bench of
the High Court.
6
4. Shri  V. Prabhakar, appearing on behalf of the appellants/LRs
of   the   defendant   submitted   that   the   suit   for   partition   is   not
maintainable inasmuch as even according to the plaintiffs, partition
had taken place way back in the year 1912 between the branches of
their ancestor Pazanivelu Mudaliar and his brother Chokalingam.
The auction sale conducted by the court in the year 1933 remained
unquestioned by the plaintiffs and their predecessors; since the
entire property was sold in the auction sale, the defendant being the
purchaser of the property was entitled to the entire property. It was
submitted that in the earlier litigations filed by the temple and the
school in respect of the entire property, the father of the plaintiffs
was a co­defendant along with the father of the defendant and had
pleaded or given evidence to the effect that the entire property was
purchased by the father of the defendant by way of court auction,
and that the father of the defendant was in possession as the owner
of the same. Such disputes were decided in favour of the father of
the defendant, upholding his title, and therefore by operation of the
principles of res judicata as well as estoppel, it could be said that
the defendant and his father had the right to own the property and
7
consequently, the plaintiffs did not have any right over ‘A Schedule’
property. It was also contended that the defendant and his father
had remained in uninterrupted possession and had been asserting
the right consistently and openly from 1933 onwards, and therefore
it could be safely said that the defendant had perfected his title by
virtue of adverse possession.
Per   contra,   Smt.   V.   Mohana,   learned   Senior   Advocate,
appearing on behalf of the respondents/plaintiffs submitted that
the question of any conflict regarding  inter se  title between the
plaintiffs’ father and the defendant’s father had not been in issue in
any of the earlier litigations and, therefore, there was no question of
attracting the principles of res judicata with respect to the plaintiffs’
claim. Similarly, the admission of the plaintiffs’ father regarding the
right of the defendant’s father could not operate as an estoppel as it
could not be said that the defendant and his father had acted to the
detriment of their interest on the basis of any admission of the
plaintiffs’ father; even otherwise, such admission could be explained
satisfactorily. Since the partition between the branches of the two
brothers Pazanivelu and Chokalingam which occurred in the year
8
1912 through a registered partition deed was not in dispute, 50% of
the share vested with the legal heirs of Pazanivelu Mudaliar, i.e.,
the plaintiffs. It was for the defendant to plead and prove that he
had remained in exclusive possession in respect of such 50% of the
property to the exclusion of the plaintiffs, adverse to the interest of
the  plaintiffs for the  requisite  period; otherwise the  question  of
acquiring right by adverse possession would not arise.
5.  It is not in dispute that the entire property of 3.18 acres (now
reduced to 2.72 acres) was owned by two brothers, Pazanivelu and
Chokalingam. It is also not in dispute that a partition took place
between the families of the two brothers i.e., Chokalingam and his
brother’s son namely Narayanaswamy Mudaliar on 21.7.1912 (since
Pazanivelu   had   expired   by   then)   through   a   registered   partition
under which each of them got 50% of the property which ultimately
amounted to 1.36 acres each. It is needless to observe that the said
Narayanaswamy   Mudaliar   is   the   son   of   Pazanivelu   Mudaliar.
Subsequently, further partition took place between the two sons of
Pazanivelu namely, Narayanaswamy and Manickam on 5.4.1933 in
respect of aforementioned 1.36 acres, i.e., ‘A’ Schedule property
9
allotted to their branch, which was entirely allotted to Manickam in
the partition of 1933. This share was subsequently alienated by
Manickam,   and   eventually   repurchased   by   his   brother
Narayanaswamy. Thus, it is clear that 50% of the entire property
had fallen to the share of the sons of Pazanivelu Mudaliar and the
remaining 50% remained with Chokalingam.   It is not in dispute
that the plaintiffs are the grandsons of Narayanaswamy Mudaliar.
Thus they have inherited 50% of the property, i.e., to the extent of
1.36 acres. It seems Chokalingam fell into debt and his property in
question was brought to sale through court auction. The auction
was held on 21.12.1933 and Subbaraya Mudaliar, i.e., father of the
defendant was the purchaser in this court auction. Said Subbaraya
Mudaliar died in the year 1940 leaving behind the defendant. Thus,
what could be sold in the court auction was only 50% of 2.72 acres
which was held by Chokalingam, i.e. 1.36 acres. The remaining
50%   of   the   property   (i.e.   ‘A’   Schedule)   which   vested   with
Narayanaswamy   and   his   family   could   not   be   sold   in   the   court
auction. The order relating to the confirmation of sale in Execution
Proceeding Registration No. 2/33 was produced and marked before
10
the   Trial   Court,   which   contains   the   schedule   of   the   property.
Unfortunately, none of the parties have produced the judgment
passed in O.S. No. 20/1918 which ultimately ended in court sale in
E.P. No.2/33. Thus, this Court is not in a position to say exactly as
to whether the entire property was the subject matter of the court
sale or not. Be that as it may, since Chokalingam was the judgment
debtor, at most only his share in the property could be sold and it is
not open for the purchaser to contend that he purchased the entire
property though only 50% of the property belonged to the judgment
debtor. The purchaser can not get a higher right, title or interest in
the   property   than   what   vested   with   the   seller.     Ultimately   the
purchaser takes the risk, if he purchases the property which does
not belong to the judgment debtor. The purchaser at an auction
sale takes the property subject to all the defects of title, and the
doctrine of caveat emptor (let the purchaser beware) applies to such
a purchaser. Therefore, even assuming that the court auction sale
was held in respect of the entire property, it cannot be said that
such sale was valid to the entire extent. At most, it can be said that
it was valid to the extent of the property which was owned by the
11
judgment debtor i.e. Mr. Chokalingam, i.e. 1.36 out of 2.72 acres.
The   remaining   50%,   i.e.,   schedule   ‘A’   property   was   owned   by
Narayanaswamy Mudaliar and his legal representatives.
6. The suit out of which this appeal arises is not a mere suit for
partition. On the other hand, primarily it is a suit for declaration of
the plaintiffs’ title to the suit property, i.e., ‘A schedule’ property
and   for   permanent   injunction   restraining   the   defendants   from
entering the possession of ‘A schedule’ property, which is nothing
but 50% of the entire ‘B Schedule’ property which fell to the share
of Narayanaswamy Mudaliar. Alternatively, it was prayed by the
plaintiffs that if the plaintiffs and defendant are found to be in joint
possession, they  be  granted the relief  of partition  and  separate
possession to the plaintiffs’ half share in ‘B schedule’ property. It is
relevant to note here itself that ‘B schedule’ property measures 2.72
acres in its entirety, whereas ‘A schedule’ property is 50% of ‘B
schedule’ property, measuring 1.36 acres, which fell to the share of
Narayanaswamy   Mudaliar   in   the   partition   of   1912.   Since   the
partition   had   taken   place   in   1912   between   Chokalingam   and
Narayanswamy Mudaliar (being the son of Pazanivelu), and as the
12
plaintiffs   inherited   the   property   from   Narayanaswamy   Mudaliar,
they are entitled to 50% of the share in ‘B schedule’ property.  The
Division Bench has rightly held that the plaintiffs are entitled to ‘A
Schedule’ property, which is the half share allotted to their branch
in the partition of 1912, out of ‘B Schedule’ property. Thus, the
question of maintainability raised by the defendant fails.
7. The plaintiffs need not question the auction sale which was
conducted in 1933 inasmuch as, firstly, they are not parties to
those proceedings including the execution proceedings and court
auction. Secondly, by virtue of auction sale, the purchaser would
get   only   the   share   vested   with   Chokalingam   inasmuch   as
Chokalingam alone was the judgment debtor. The property which is
not owned by the judgment debtor could not be sold at all and
therefore, even assuming that the sale certificate is wrongly issued
in   respect   of   the   entire   property,   the   same   does   not   bind   the
plaintiffs inasmuch they continued to be the owner of 50% of the
whole of the property.
8. It is no doubt true that in the suit filed by the temple against
the father of the defendant, the father of the plaintiffs was also
13
arrayed as Defendant No. 2. It is also not in dispute that the father
of the plaintiffs and the father of the defendant by engaging a
common advocate filed a common written statement pleading that
the temple was not the owner of the property and that Defendant
No.1 was the owner of the property. It is also not in dispute that the
father of the plaintiffs admitted in the said suit that Defendant No.1
in the said suit, namely, the father of the defendant herein, was the
owner of the property. So also, in the suit filed by the school, the
father of the plaintiffs was also arrayed as one of the defendants
along with the father of the defendant. In the said suit also, a
common written statement was filed. Even in the suit filed by the
school,   the   defendants   therein,   i.e.,   the   father   of   the   plaintiffs
herein and father of the defendant herein jointly pleaded that the
school was not the owner of the property and that the defendants
were the owners. Both the suits filed by the temple and the school
came to be dismissed, holding that the temple as well as the school
were not the owners of the property. From the aforementioned facts
and the pleadings as well as the evidence recorded in the said suits,
it is amply clear that there was no dispute  inter se  between the
14
defendants.   In   other   words,   there   was   no   dispute   whatsoever
regarding title between the father of the plaintiffs and the father of
the defendant in those two suits. The main question to be decided
in those suits was whether the third parties who had claimed rights
were   entitled   the   property.   Since   the   question   of  inter   se  title
between the defendant’s father and the plaintiffs’ father was not in
issue and was also not required to be decided in the disputes then
raised, obviously, the doctrine of  res judicata  cannot be applied
between such co­defendants.
9. However, there exist certain situations in which principles of
res judicata  may apply as between co­defendants.   This has been
recognized by the English Courts as well as our Courts for more
than a century. The requisite conditions to apply the principle of
res judicata  as between co­defendants are that (a) there must be
conflict of interest between the defendants concerned, (b) it must be
necessary to decide this conflict in order to give the plaintiff the
relief he claims and (c) the question between the defendants must
have been finally decided. All the three requisite conditions are
absent in the matter on hand. Firstly, there was no conflict of
15
interest between the defendants in the suits filed by the temple and
the   school.   Secondly,   since   there   was   no   conflict,   it   was   not
necessary to decide any conflict between the defendants in those
suits in order to give relief to the temple or the school, which were
the plaintiffs. On the other hand, the father of the plaintiffs and the
father of the defendant were colluding in those suits filed by Temple
and School.  Both of them unitedly opposed those suits.  In view of
the same, the principles of res judicata would not apply. The Privy
Council in the case of Mt. Munni vs. Tirloki Nath, AIR 1931 PC 114
has observed thus:
“The doctrine of res judicata finds a place in S.11 Civil
P.C., 1908, but it has been held by this Board on many
occasions   that   the   statement   of   it   there   is   not
exhaustive; the latest recognition of this is to be found
in Kalipada De v. Dwijapada Das [AIR 1980 PC 22]. For
the general principles upon which the doctrine should
be applied it is legitimate to refer to decisions in this
country:   see   Soorjamonee   Dayee   v.   Suddamund
Mahapatter [I.A. Sup, Vol. 212], Krishna Behari Roy v.
Banwari Lal Roy [(1874) 1 Cal. 144], Raja Run Bahadur
Singh v. Mt. Lachoo Koer [(1885) 11 Cal. 301]. That
there may be res judicata as between co­defendants
has been recognized by the English Courts and by a
long course of Indian decisions. The conditions under
which this branch of the doctrine should be applied are
thus stated by Wigram V.C., in Cottingham v. Earl of
Shrewsbury [ (1843) 3 Hare 627] at 638:
16
“If a plaintiff cannot get at his right without trying
and   deciding  a   case   between   co­defendants,   the
Court will try and decide that case, and the codefendants
will be bound, but if the relief given to
the plaintiff does not require or involve a decision
of   any   case   between   co­defendants,   the   codefendants
  will   not   be   bound   as   between   each
other by any proceeding which may be necessary
only to the decree the plaintiff obtains.”
This statement of the law has been accepted and followed
in many Indian cases: see Ahmad Ali v. Najabat Khan
[(1895)   18   All.   65],   Ramchandra   Narayan   v.Narayan
Mahadev   [(1887)   11   Bom.   216],   Magniram   v.   Mehdi
Hossein Khan [(1904) 31 Cal. 95]. It is, in their Lordships’
opinion, in accord with the provisions of S. 11, Civil P.C.,
and they adopt it as the correct criterion in cases where it
is sought to apply the rule of res judicata as between codefendants.
In such a case therefore three conditions are
requisite: (1) There must be a conflict of interest between
the defendants concerned; (2) it must be necessary to
decide this conflict in order to give the plaintiff the relief
he claims; and (3) the question between the defendants
must have been finally decided.”
                                                                 (emphasis supplied)
10. Once again, the very principles were restated in the case of
Syed Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg and
others,   AIR (30) 1943 Privy Council 115, in which the following
observations were made:
“In order that a decision should operate as res judicata
between co­defendants three conditions must exist: (1)
17
There must be a conflict of interest between those codefendants;
(2) it must be necessary to decide the conflict
in order to give the plaintiff the relief he claims; and (3)
the question between the co­ defendants must have been
finally decided.  There can be no doubt that in the case
under consideration the first and third conditions were
fulfilled.   Whether   the   second   condition   existed   is   the
question to be answered. The Chief Court held that it did
not   exist   for   the   reasons   appearing   in   the   following
extract from their judgment.” 
11. Almost   the   same   principles   were   reiterated   in   the   case   of
Chandu Lal vs. Khalilur Rahaman, AIR (37) 1950 Privy Council 17,
in which the following observations were made:
“In Munni Bibi and Another vs. Tirloki Nath, 58 I.A. 158:
[AIR (18) 1931 PC 114] the conditions for the application
of the doctrine of res judicata as between parties who
have been co­defendants in a previous suit are thus laid
down: there must be (1) a conflict of interest between the
co­defendants, (2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief, and (3) a
decision of that question between the co­defendants.  It
may be added that the doctrine may apply even though
the party, against whom it is sought to enforce it, did not
in the previous suit think fit to enter an appearance and
contest the question. But to this the qualification must
be   added   that,   if   such   a   party   is   to   be   bound   by   a
previous judgment, it must be proved clearly that he had
or must be deemed to have had notice that the relevant
question was in issue and would have to be decided.”
                                                         (emphasis supplied)
18
In the case of  Md. Saadat Ali  (supra), though the first and third
conditions were fulfilled, the second condition was not fulfilled and
hence it was held that the principles of res judicata will not apply,
meaning thereby that all the three conditions should be fulfilled in
order to apply the principles of res judicata.
12. It is true that under Section 11 of the CPC, when the matter
has been directly or substantially in issue in a former suit between
the same parties or between parties under whom they or any of
them claim, litigating under the same title, the decree in the former
suit would operate as  res judicata  between the plaintiff and the
defendant   or   as   between   the   co­plaintiffs   or   co­defendants.   For
instance, if in a suit by P against D1 and D2, the matter is directly
and substantially in issue between D1 and D2 and adjudication
upon that matter was necessary to determine the suit to grant relief
to P, the adjudication would operate as res judicata in subsequent
suits between D1 and D2 in which either of them is plaintiff or
defendant.  In other words, if a plaintiff cannot get his claimed relief
without trying and deciding a case between the co­defendants, the
court  will   try  and  decide   the  case  in   its   entirety  including  the
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conflict   of   interest   between   the   co ­defendants   and   the   co defendants
will be bound by the decree. But if the relief given to the
plaintiff does not require or involve a decision of any case between
co­ defendants, the  co ­defendants  will not  be  bound  as between
each other. This Court in the case of  Mahboob Sahab vs. Syed
Ismail and others, (1995) 3 SCC 693, considering the applicability of
the doctrine of  res judicata  between co­defendants held that the
following four conditions must be satisfied, namely,
“(1)   there   must   be   a   conflict   of   interest   between   the
defendants concerned;
(2) it must be necessary to decide the conflict in order to
give the reliefs which the plaintiff claims;
(3) the question between the defendants must have been
finally decided; and
(4) the co­defendants were necessary or proper parties in
the former suit.”
To reach the conclusion mentioned above, this Court relied
upon the judgments in the cases of Syed. Mohd. Saadat Ali Khan
vs. Mirza Wiquar Ali Beg, AIR 1943 PC 115; Shashibushan Prasad
Mishra vs. Babuji Rai, AIR 1970 SC 809 and  Iftikhar Ahmed vs.
Syed Meharban Ali, (1974) 2 SCC 151.
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13. Coming   to   the   question   of   estoppel   as   argued   by   the
defendant’s counsel based on the admission of the father of the
plaintiffs in the pleadings and in his deposition regarding the title of
the father of the defendant in the aforementioned earlier litigations,
it is no doubt true that an admission is the best piece of evidence.
However, an admission can always be explained, unless such an
admission gives rise to the principle of estoppel. The principle of
estoppel could have arisen if the father of the defendant had acted
to his detriment on the basis of the representation made by the
plaintiffs’ father as the basic requirement for attracting the principle
of estoppel, is that the person to whom the representation has been
made must have acted on the basis of such representation, and
particularly to his own detriment. In the matter on hand, the father
of the defendant knew about the correct position on facts and he
very well knew that he was the owner to the extent of 50% of the
property only, and as he did not act to his detriment, the question
of estoppel does not arise. As mentioned supra, it is well settled that
in an auction purchase, the auction purchaser does not acquire any
right over the property higher than that of the judgment debtor.
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Since the principles of res judicata between co­ defendants are not
applicable   in   this   case,   and   since   a   mere   admission   does   not
operate as an estoppel, such admission does not create or pass any
title in favour of the defendant’s father and consequently to the
defendant. On the other hand, it is apparent that the defendant’s
father had right over only half of the property in question, which he
had purchased.
14. The Division Bench has rightly negated the contention of the
defendant relating to adverse possession. From the evidence on
record, the trial Court and the Division Bench of the High Court
have come to the conclusion that the defendant has failed to prove
that he and his predecessor ­in ­interest had possession over the
entire   property   to   the   exclusion   of   the   plaintiffs   and   their
predecessor.   No material is found on record which emphatically
discloses that the physical delivery of possession of the property
was given to the auction purchaser by evicting or in exclusion of all
the persons including the plaintiffs’ father and the plaintiffs. In the
absence of such material, the Trial Court and the Division Bench
have   rightly   concluded   that   there   was   symbolic   delivery   of
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possession   in   favour   of   the   auction   purchaser.   However,   the
subsequent documents show joint possession of the plaintiffs and
the defendant. Even now the names of both the parties are found in
the   revenue   records.   The   documents   do   not   show   exclusive
possession of either of the parties, but would indicate that they are
in joint possession. Exhibits A­7, A­8 and A­9 are the pattas which
disclose the names of both the parties in the revenue records. Even
the house tax receipts are in the name of the plaintiffs’ predecessor.
‘A schedule’ property has already been subjected to partition inter
se among the plaintiffs after the death of Narayanswamy Mudaliar
and the allotment of property in question, i.e. ‘A Schedule’ has been
made in favour of the second plaintiff as per   Exhibit A­40. The
aforementioned records and certain other material on record would
negative   the   contention   of   the   defendant   relating   to   adverse
possession.  The plaintiffs have proved satisfactorily that they are
the   owners   of   ‘A   Schedule’   property,   i.e.,   50%   of   the   property
partitioned in 1912, which had ultimately fallen in the share of Mr.
Narayanaswamy (grandfather of plaintiffs) as mentioned supra. 
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 15. In view of the same, we do not find any reason to interfere with
the impugned judgment of the Division Bench of the High Court
passed   in   L.P.A.   No.   70/2002   dated   29.01.2007.     The   instant
appeal accordingly fails and is hereby dismissed.
……..………………………………….J.
[N.V. RAMANA]
NEW DELHI; …….……………………………………J.
OCTOBER 23, 2018. [MOHAN M. SHANTANAGOUDAR]
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