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TMI Blog2016 (2) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... ff, 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 set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 10. 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?" 11. 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?" 12. 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 sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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[(1994) 2 SCC 14]) 15. In Jaswant Singh v. Custodian of Evacuee Property[(1985) 3 SCC 648], 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...." 16. The expression 'cause of action' came to be interpreted by this Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair[(2004) 3 SCC 277], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shah Ahmed Mohiuddin Kamisul Quadri and Ors[(1971) 1 SCC 597] 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. 22. A three judge bench of this court in P.Lakshmi Reddy v. R.Lakshmi Reddy[AIR 1957 SC 1789], 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 necvinecclamnecprecario. (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 enou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 25. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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