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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.  

2.  Res judicata, partition, ouster and adverse possession are  

the four principles interestingly arising in the present case.

SHORT FACTS

3. 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  

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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  

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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.

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  

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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  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?”

8. 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.

9. 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  

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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.

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?”

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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  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.”

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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, 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.

14. ‘Res judicata’ literally means a “thing adjudicated” or “an  

issue that has been definitively settled by judicial decision”.1  

1 Black’s Law Dictionary, 8th Edition, p.1337

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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 Nair2)

15.  In Jaswant Singh v. Custodian of Evacuee Property3,  

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….”

2 (1994) 2 SCC 14 3 (1985) 3 SCC 648

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16. The expression ‘cause of action’ came to be interpreted  

by  this  Court  in  Kunjan  Nair  Sivaraman  Nair v.  

Narayanan Nair4, 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”.”

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 of complaint,  

4 (2004) 3 SCC 277

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or the subject-matter of grievance founding the  action,  not  merely  the  technical  cause  of  action.”

18. 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.

19. Thus,  the High Court  in  our  opinion is  not  right  on the  

point of res judicata.  

20. 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

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21. This  court  in  Syed   Shah Ghulam Ghouse Mohiuddin    

and  others v.  Syed  Shah  Ahmed  Mohiuddin  Kamisul  

Quadri  and  Ors5 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 Reddy6, 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  

5 (1971) 1 SCC 597 6 AIR 1957 SC 1789

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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 Prakash7 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.”

7 (1995) 4 SCC 496

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24. 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.”  

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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 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.

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26. There shall be no order as to costs.   

……………..……………………J.                                                         (KURIAN JOSEPH)

……………..……………………J.                     (ROHINTON FALI NARIMAN)

New Delhi; February 26, 2016.

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