TMI Blog2016 (2) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. Thereafter, the plaintiff filed the present suit in 1988 for partition. 5. 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. 6. 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. 7. The following issues were framed by the trial court: 1. Whether the suit property is liable to be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 13. 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 17. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 23. This Court in Vidya Devi v. Prem Prakash[(1995) 4 SCC 496] held that: 28. Ouster does not mean actual driving out of the co-sharer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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