The onus of proving the defence of ouster/adverse possession in a suit for partition, the estoppel of the respondents, and the conduct of the second respondent in not filing any suit and obtaining a decree, declaring his title over the suit property were central legal points established in the judgment.

JUDGMENT

(Prayer: This Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and decree dated 28.11.1997 made in A.S.No.62 of 1996 on the file of the Principal District Judge at Pondicherry confirming the Judgment and decree dated 13.02.1996 made in O.S.No.196 of 1993 on the file of the I Additional Sub Judge at Pondicherry.

This Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and decree dated 28.11.1997 made in A.S.No.11 of 1997 on the file of the Principal District Judge at Pondicherry setting aside the Judgment and decree dated 13.02.1996 made in O.S.No.196 of 1993 on the file of the I Additional Sub Judge at Pondicherry.)

Common Judjment

1. The plaintiff in O.S.No.196 of 1993 on the file of the I Additional Sub Court at Pondicherry, is the appellant in both the Second Appeals.

2. The suit in O.S.No.196 of 1993 had been filed by the plaintiff seeking partition and allotment of 1/3rd share in the suit property and also for a declaration that a preliminary decree passed in an earlier suit in O.S.No.5 of 1981, dated 30.06.1982 vide order in S.A.No.1914 of 1996, dated 23.08.1996 and the final decree passed on 09.06.1993 are not binding on the plaintiff and that they are null and void.

3. By Judgment dated 13.02.1996, the learned I Additional Sub Judge, Pondicherry, dismissed the suit but stated that the plaintiff was entitled to occupy the area under his possession in the portion of the suit property as described in Ex.A1.

4. It must be mentioned that the schedule mentioned in the plaint was land and building measuring 1820 sq.ft at Angalankuppam Village in Pondicherry.

5. However in Ex.A1, which was a Power of Attorney given by the plaintiff to his own son-in-law, the area for which such Power of Attorney was granted was land measuring 16 feet from East to west and 11 feet from South to North in the aforementioned 1820 sq.ft of land and building. 6. Questioning that Judgment, the plaintiff filed A.S.No.62 of 1996 and the 2nd and 3rd defendants filed A.S.No.11 of 1997. Both the appeals were filed before the Principal District Court at Pondicherry.

7. By Judgment dated 28.11.1997, the learned Principal District Judge, Pondicherry, dismissed A.S.No.62 of 1996 and allowed A.S.No.11 of 1997. This in effect meant that even for the restricted area for which the plaintiff was granted the right of possession was interfered with and the suit in O.S.No.196 of 1993 was dismissed in entirety.

8. Aggrieved by the said common judgment of the Principal District Court at Pondicherry, the plaintiff filed S.A.No.1302 of 1998, questioning the findings in A.S.No.11 of 1997 and S.A.No.1301 of 1998, questioning the findings in A.S.No.62 of 1996.

9. Both the Second Appeals had been admitted on 28.01.1999, and the following substantial questions of law were framed.

“(a) Whether in a suit for partition the onus of proving the defence of ouster/adverse possession are not on the shoulders of the defendants and consequently, was the Court below right in holding that the onus of proving that the respondents 2 & 3 have perfected their title by prescriptive right, is not on them, especially when, the question of claiming title by adverse possession would not arise in a suit for partition?

(b) Whether in view of the respondents 2 & 3 are not estopped from contenting contrary to the admissions made by them in Ex.A3, 21 & 22 and in their written statement that (i) the suit property is the ancestral property of their and appellant's ground father Govinda Naicker, (ii) the same stood in the name of the appellant's father in the matrice records and (iii) the relationship between them and the appellant and consequently, was the court below right in accepting such contentions of them and dismissing the suit? And

(c)whether Ex.A4 & A5 and the conduct of the second respondent in not filing any suit and obtaining a decree, declaring his title over the suit property and recovering possession o