2016 (2) TMI 1285 - SC - Indian Laws

Partition 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.

Summary

Issues Involved: Res judicata, partition, ouster, and adverse possession.

Detailed Analysis:

1. Res Judicata:
The defendant argued that the suit for partition was barred by res judicata under Section 11 of the Code of Civil Procedure, 1908. The trial court upheld this defense, referencing the dismissal of the earlier suit (O.S. No. 404 of 1962) which was based on a settlement deed. However, the first appellate court reversed this, stating that the nature, issues, and basis of the 1962 suit were different from the 1988 partition suit. The High Court disagreed, viewing the dismissal of the 1962 suit as a bar to the 1988 suit, citing the principle of res judicata to prevent re-litigation.

The Supreme Court clarified that the 1962 suit was for possession based on a settlement deed, while the 1988 suit was for partition based on birthright, making the causes of action different. Therefore, the High Court's application of res judicata was incorrect.

2. Partition:
The plaintiff sought partition of the property, claiming a half share based on inheritance. The trial court dismissed the suit on res judicata grounds, but the first appellate court decreed in favor of the plaintiff, stating that the plaintiff and defendant were co-owners and the plaintiff had not been ousted according to law. The Supreme Court upheld this view, noting that the plaintiff was entitled to her share of the family property, and the earlier suit's dismissal did not bar her claim.

3. Ouster:
The defendant contended that he had been in exclusive possession of the property since 1956, which the trial court accepted. The first appellate court disagreed, stating that co-owners' possession is presumed to be joint unless there is a clear denial of title and ouster. The High Court found that the defendant's possession since 1956 had become adverse to the plaintiff, partly based on the plaintiff's admission in the 1962 suit. The Supreme Court, however, reiterated that ouster requires a clear, hostile denial of title, long and uninterrupted possession, and knowledge of the other co-owner, which was not sufficiently established by the defendant.

4. Adverse Possession:
The defendant claimed adverse possession, arguing that he had been in exclusive possession for over thirty years, paying property taxes and having the patta in his name. The trial court upheld this defense, but the first appellate court rejected it, stating that co-owners' possession is presumed to be joint without a clear ouster. The High Court found in favor of the defendant, but the Supreme Court emphasized that adverse possession among co-owners requires clear evidence of hostile possession and ouster, which was not adequately proven.

Final Judgment:
The Supreme Court aimed to resolve the long-standing dispute by suggesting a settlement, which the parties accepted. It ordered that the property be partitioned, with the appellants receiving 35% and the respondent 65%. If partition by metes and bounds was not possible, the property was to be sold and the proceeds shared accordingly. The Principal City Civil Judge, Madras, was directed to finalize the partition within three months.

Conclusion:
The Supreme Court's judgment clarified the principles of res judicata, partition, ouster, and adverse possession, ultimately facilitating a settlement to end the prolonged litigation. The appeals were disposed of with no order as to costs.