2022 Supreme(SC) 270

SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
B.R. Patil – Appellant
Versus
Tulsa Y. Sawkar & Ors. – Respondents
Civil Appeal No(s). 2652-2654 of 2013
Decided on : 09-02-2022

IMPORTANT POINT
(1) Principle that there cannot be a partial partition is not an absolute one – It admits of exceptions. Properties not in possession of co-sharers/coparceners being omitted cannot result in a suit for partition of properties which are in their possession being rejected.
(2) CPC permits a plaintiff to join causes of action but it does not compel a plaintiff to do so.
(3) Mere continuance in possession of a co-owner does not suffice to set up a plea of ouster.

Headnote:

(A) Property Law – Partition – Law looks with disfavour upon properties being partitioned partially – Principle that there cannot be a partial partition is not an absolute one – It admits of exceptions – Properties not in possession of co-sharers/coparceners being omitted cannot result in a suit for partition of properties which are in their possession being rejected. (Para 10 and 11)

(B) Civil Procedure Code, 1908 – Order II Rules 2 and 3 – Joinder of causes of action – Order II Rule 3 does not compel a plaintiff to join two or more causes of action in a single suit – Failure to join together all claims arising from a cause of action will be visited with consequences proclaimed in Order II Rule 2 – Order II Rule 3 permits plaintiff to join together different causes of action – CPC permits a plaintiff to join causes of action but it does not compel a plaintiff to do so – Consequences of not joining all claims arising from a cause of action may be fatal to plaintiff. (Paras 16 and 17)

(C) Property Law – Ouster (Adverse Possession) – It is not the law that a co-owner cannot acquire his own independent or separate properties – Possession of a co-owner however long it may be, hardly by itself, will constitute ouster – In case of a co-owner, it is presumed that he possesses property on behalf of entire body of co-owners – Even non-participation of rent and profits by itself need not amount to ouster – Proof of ingredients of adverse possession are indispensable even in a plea of ouster – However, there is additional requirement in case of ouster that elements of adverse possession must be shown to have been made known to co-owner – Very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself – Possession of a co-owner is ordinarily on his behalf and also on behalf of entire body of co-owners – In case of an ouster, co-owner must indeed have hostile animus – He must assert a title which is not referable to lawful title – Mere continuance in possession of a co-owner does not suffice to set up a plea of ouster – Possession of co-owner will also be referable to lawful title. (Paras 24 and 29)

Facts of the case:

The first defendant in O.S. No.7944 of 2003 in the Court of Additional City Civil Judge at Bangalore is the appellant. The said suit was filed by his sister as the first plaintiff and his sister- in-law as the second plaintiff for, (a) partition and separate possession of their 1/5th share each, in the suit schedule items 1 to 3 properties by metes and bounds and 1/5th share each, in the sale proceeds of items 4 & 5 of suit schedule properties, after their sale.

(b) a direction to the 1st defendant to render accounts of the rentals received by him, from item no. 1 and 3 of the suit schedule properties from 1983 onwards till the date of suit and for partition of 1/5th share of each plaintiff, in the said rentals.

(c) For an enquiry into the rentals to be received by the 1st defendant from suit items 1 & 3 during the pendency of the suit and for partition of 1/5th share of each plaintiff, and

(d) for mesne profit from the date of preliminary decree, till date of delivery of the 1/5th share of each plaintiff, and

(e) for such other relief or reliefs as this Hon’ble Court deems fit to grant to the plaintiffs in the facts and circumstances of the case.

Findings of Court:

No reason to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard.

Result : Appeals dismissed.