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2016 (2) TMI 1285 - SC - Indian LawsPartition of property - 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 - 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. Principles of res judicata - HELD THAT:- 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 - the High Court is not right on the point of res judicata. Whether suit is ouster and limitation? - HELD THAT:- 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 ORS. VERSUS SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI (DEAD) [1971 (2) TMI 127 - SUPREME COURT] 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. 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.
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