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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