IMPORTANT POINT
Res judicata will not be attracted where cause of action are entirely different in the earlier and subsequent suits.
Ouster is weak defense in suit for partition of family property, but it is a strong consideration in case 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.

JUDGMENT :

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 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 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 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 appellate court, the decree in O.S. No. 404 of 1962, a suit for possession and injunction based on a se