# B. R. PATIL v. TULSA Y. SAWKAR & ORS

- **Citation:** [2022] 13 S.C.R. 569
- **Court:** Supreme Court of India
- **Decided:** 2022-02-09
- **Case number:** Civil Appeal Nos.26522654 of 2013
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-r-patil-v-tulsa-y-sawkar-ors-35397
- **Pages:** 23

## Headnote

Code of Civil Procedure, 1908 -Order II r.2,3 - Joinder of
causes of action - Order II r. 3 does not compel a plaintiff to join
two or more causes of action in a single suit - The failure to join
together all claims arising from a cause of action will be visited
with consequences proclaimed in Order II r. 2 - CPC permits a
plaintiff to join causes of action but it does not compel a plaintiff to
do so.
Code
of
Civil
Procedure,
1908
-
Partition
-
Lawlookswithdisfavor upon properties being partitioned partially
- Theprinciplethattherecannotbeapartialpartition is not an absolute
one - It admits of exceptions.
Code of Civil Procedure, 1908 - Necessary Party - Nonjoining of necessary parties is fatal.
Possession -Adverse Possession - Ouster - Possession of a
co-owner however long it may be hardly by itself will constitute
ouster - In the case of co-owner, it is presumed that he possesses the
property on behalf of the entire body of co-owners - Even nonparticipation of rent and profits by itself need not amount to ousterThe proof of the ingredients of adverse possession are indispensable
even in a plea of ouster - There is the additional requirement in the
case of ouster that the elements of adverse possession must be shown
to have been made known to the co-owner - This is apparently for
the reason that the possession of a co-owner is treated as possession
of other co-owners - The very essence of adverse possession and
ouster lies in a party setting up a hostile title in himself - The
possession of a co-owner is ordinarily on his behalf and also on
behalf of the entire body of the co-owners - In the case of an ouster,
the co-owner must indeed have the hostile animus - He must assert
a title which is not referable to lawful title.
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
Partition - Right to sue for - Ancestral and Self acquired
property - The parties do not have any birth right in the self acquired
properties and they cannot bring a suit based on such a right - A
suit for partition in regard to ancestral property/joint family property
would be premised on birth right.
Code of Civil Procedure, 1908 - Properties not in the
possession of co-sharers/coparceners being omitted cannot result
in a suit for the partition of the properties which are in their
possession being rejected.
Dismissing the appeals, the Court
HELD : 1.The grand parent of the parties was one 'MP'.
He had two sons. There is no dispute regarding this. In the plaint,
it is true that that the plaintiffs havestated that 'MP' had another
son who remained an agriculturist. It is the further plea of the
plaintiffs that 'MP' had a bit of landed property which was sufficient
to eke out his livelihood. He left the landed property to the other
son who remained an agriculturist. It is the further case and which
is not open to dispute also that 'R' was got educated and he
obtained a Degree of Law and started practicing and later 'R'
became a Public Prosecutor and he resigned the post and he
entered into politics. He became a successful politician and
became a Cabinet Minister holding various portfolios. These facts
are, in fact, not in dispute. The only point to be considered under
the first head of complaint of the appellant is about the noninclusion of the property of which there is a faint reference in the
plaint, namely, that 'MP' had a bit of landed property and it was
left to the other son. The appellant would lay store by the
deposition given by one of the witnesses for the plaintiffs, namely,
PW-3.The Court is of the view that the interest of justice lies in
rejecting the appellant's contention. The appellant has not been
able to clearly establish the exact extent or identity of the
property available by way of ancestral property. Despite claiming
to having documents relating to the properties and admitting to
having no difficulty to produce them, he does not produce them.
He is unable to even give the boundaries. It is obvious that he
does not claim to be

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569
 [2022] 13 S.C.R. 569
B. R. PATIL
v.
TULSA Y. SAWKAR & ORS.
(Civil Appeal No(s). 2652-2654 of 2013)
FEBRUARY 09, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Code of Civil Procedure, 1908 -Order II r.2,3 - Joinder of
causes of action - Order II r. 3 does not compel a plaintiff to join
two or more causes of action in a single suit - The failure to join
together all claims arising from a cause of action will be visited
with consequences proclaimed in Order II r. 2 - CPC permits a
plaintiff to join causes of action but it does not compel a plaintiff to
do so.
Code
of
Civil
Procedure,
1908
-
Partition
-
Lawlookswithdisfavor upon properties being partitioned partially
- Theprinciplethattherecannotbeapartialpartition is not an absolute
one - It admits of exceptions.
Code of Civil Procedure, 1908 - Necessary Party - Nonjoining of necessary parties is fatal.
Possession -Adverse Possession - Ouster - Possession of a
co-owner however long it may be hardly by itself will constitute
ouster - In the case of co-owner, it is presumed that he possesses the
property on behalf of the entire body of co-owners - Even nonparticipation of rent and profits by itself need not amount to ousterThe proof of the ingredients of adverse possession are indispensable
even in a plea of ouster - There is the additional requirement in the
case of ouster that the elements of adverse possession must be shown
to have been made known to the co-owner - This is apparently for
the reason that the possession of a co-owner is treated as possession
of other co-owners - The very essence of adverse possession and
ouster lies in a party setting up a hostile title in himself - The
possession of a co-owner is ordinarily on his behalf and also on
behalf of the entire body of the co-owners - In the case of an ouster,
the co-owner must indeed have the hostile animus - He must assert
a title which is not referable to lawful title.
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
Partition - Right to sue for - Ancestral and Self acquired
property - The parties do not have any birth right in the self acquired
properties and they cannot bring a suit based on such a right - A
suit for partition in regard to ancestral property/joint family property
would be premised on birth right.
Code of Civil Procedure, 1908 - Properties not in the
possession of co-sharers/coparceners being omitted cannot result
in a suit for the partition of the properties which are in their
possession being rejected.
Dismissing the appeals, the Court
HELD : 1.The grand parent of the parties was one 'MP'.
He had two sons. There is no dispute regarding this. In the plaint,
it is true that that the plaintiffs havestated that 'MP' had another
son who remained an agriculturist. It is the further plea of the
plaintiffs that 'MP' had a bit of landed property which was sufficient
to eke out his livelihood. He left the landed property to the other
son who remained an agriculturist. It is the further case and which
is not open to dispute also that 'R' was got educated and he
obtained a Degree of Law and started practicing and later 'R'
became a Public Prosecutor and he resigned the post and he
entered into politics. He became a successful politician and
became a Cabinet Minister holding various portfolios. These facts
are, in fact, not in dispute. The only point to be considered under
the first head of complaint of the appellant is about the noninclusion of the property of which there is a faint reference in the
plaint, namely, that 'MP' had a bit of landed property and it was
left to the other son. The appellant would lay store by the
deposition given by one of the witnesses for the plaintiffs, namely,
PW-3.The Court is of the view that the interest of justice lies in
rejecting the appellant's contention. The appellant has not been
able to clearly establish the exact extent or identity of the
property available by way of ancestral property. Despite claiming
to having documents relating to the properties and admitting to
having no difficulty to produce them, he does not produce them.
He is unable to even give the boundaries. It is obvious that he
does not claim to be in possession of the said properties even if
it be as a co-owner on the basis that it isancestral property. His
evidence discloses that in reality and on the ground these
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properties could not be said to be actually available for the parties
to the present suit to lay claims over them. Properties not in the
possession of co sharers/coparceners being omitted cannot result
in a suit for the partition of the properties which are in their
possession being rejected. [Paras 7 & 11][578-D-G; 580-E-G]
2.On the cause of action in this case, there is no warrant to
complain against the non-impleadment of the appellant's uncle
or his successors in interest. We may also point out that Order II
Rule 3 does not compel a plaintiff to join two or more causes of
action in a single suit. The 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 the plaintiff
to join together different causes of action. No doubt it is a different
matter that if there is a misjoinder of causes of action, the power
of the court as also the right of the parties to object are to be
dealt with in accordance with law which is well settled.The Court
has no quarrel with the proposition that the non-joining of
necessary parties is fatal but in thefacts of this case, on the cause
of action which is projected in the plaint and the schedule of
properties which has been made by the plaintiffs, the Court would
not think that the non-joinder of the uncle of the appellant or his
legal representatives would imperil the suit filed by the
plaintiffs.[Paras 16 & 18][582-F-H; 583-C-D]
3.The possession of a co-owner however long it may be,
hardly by itself, will constitute ouster. In thecase of a co-owner, it
is presumed that he possesses the property on behalf of the entire
body of co-owners. Even non-participation of rent and profits by
itself need not amount to ouster. The proof of the ingredients of
adverse possession are undoubtedly indispensable even in a plea
of ouster. However, there is the additional requirement in the
case of ouster that the elements of adverse possession must be
shown to have been made known to the co-owner. This is
apparently for the reason that the possession of a co-owner is
treated as possession of other co-owners. While it may be true
that it may not be necessary to actually drive out the co-owner
from the property as noticed in Mohd. Zainulabudeen (since
deceased) by lrs. v. Sayed Ahmed Mohideen and Others, mere
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continuance in the possession of a co-owner does not suffice to
set up a plea of ouster. The possession of the co-owner will also
be referable to lawful title. The possession of the appellant even
of the ground floor of the building on the land in question, was
entirely in accord with his right as a co-owner.[Para 24][587-BE]
4. Coming to the equity of the matters, the complaint of the
appellant is that the appellant is a Senior Citizen and aged about
80 years and while the other siblings have their own properties
and only the appellant would be most adversely affected and he
will be on the streets. The Court must notice that the appeals
are only maintained against the preliminary decree by which shares
have been declared. Therefore, the Court does not see any reason
for us 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.Therefore, the Court sees no merit in the appeals. The
appeals will stand dismissed.[Paras 30 & 31][591-E-G]
Mohd. Zainulabudeen (since deceased) by Lrs. v. Sayed
Ahmed Mohideen and Others (1990) 1 SCC 345 : [1989]
2 Suppl. SCR 519 - relied on.
Iswar Bhai C. Patel alias Bachu Bhai Patel v.
HariharBehera and Another AIR 1999 SC 1341
: [1999] 1 SCR 1097; P. Lakshmi Reddy v. L. Lakshmi
Reddy AIR 1957 SC 314 : [ 1957] SCR 195; Md.
Mohammad Ali (dead) by Lrs. v. JagadishKalita and
Others (2004) 1 SCC 271:[2003] 4 Suppl. SCR 325 -
referred to.
Case Law Reference
[1999] 1 SCR 1097
referred to
Para 16
[1957] SCR 195
referred to
Para 21
[2003] 4 Suppl. SCR 325
referred to
Para 23
[1989] 2 Suppl. SCR 519
relied on
Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.26522654 of 2013
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From the Judgment and Order dated 14.09.2012 of the High Court
of Karnataka at Bangalore in RFA Nos.1296, 1503 and 1369 of 2005.
Salim A. Inamdar, Rabin Majumder, Advs. for the Appellant.
S. N. Bhat, Sr. Adv., D. P. Chaturvedi, Tarun Kumar Thakur, Ms.
Parvati Bhat, Ms. Anuradha Mutatkar, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The first defendant in O.S. No.7944 of 2003 in the Court of
Additional City Civil Judge at Bangalore is the appellant before us. The
said suit was filed by his sister as the first plaintiff and his sister- in-law
as the second plaintiff. The reliefs sought read as follows: -
"(1)(a) For 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 the 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.
(2) For Perpetual injunction restraining the 1st defendant from
interfering with the peaceful possession and enjoyment of 1st floor
of item no. 3 of the suit schedule property and to park the car in
the premises of the item No. 3 by the 2nd plaintiff."
2. The Trial Court partly decreed the suit. It granted prohibitory
injunction in favour of the second plaintiff.
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ORDER
"The suit is decreed in part.
The claim of plaintiff for partition and separate possession
of their alleged 1/5th share each and other consequential reliefs as
prayed in Paras (b) to (d) is dismissed.
The reliefs claimed by defendant No. 1, defendant No. 2
and defendant No. 3 are disallowed.
The claim of plaintiff No. 2 for the relief of injunction is
granted in the following terms:
Defendant No. 1, his men, agents etc., are directed not to
interfere with peaceful possession and enjoyment of 1st floor of
item No. 3 of the suit schedule by plaintiff no. 2 and her right to
park the car in the premises of Item No. 3 till the division in the
estate of the joint family takes place by metes and bounds, in
accordance with law.
In the circumstances of the case, parties are left to bear
their own costs.
Dictated to the Judgment Writer, transcribed by her,
corrected and then pronounced by me in open court this the 9th
day of July, 2005.
(I.S. Antin)
XXII Addl. City Civil Judge,
Bangalore"
3. Feeling aggrieved by the aforesaid judgment, three separate
appeals have been generated. RFA No.1503/2005 was filed by the
appellant. RFA No.1296/2005 was filed by the plaintiffs whereas RFA
No.1369/2005 was filed by the second defendant in the suit. By the
impugned judgment, the High Court has allowed the appeal filed by the
plaintiffs and the second defendant and dismissed the appeal filed by the
first defendant. Resultantly, the High Court has decreed the suit in the
following manner: -
"33. Accordingly, the judgment dated 08.07.2005 passed by the
XXII Addl. City Civil Judge, Bangalore in O.S. No.7944/2003 in
respect of partition of suit schedule properties, is set aside. The
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appeals are allowed insofar as partition of item Nos. 1 to 4 of
plaint schedule properties. The suit for partition of item No.5 of
the plaint schedule property is dismissed.
34. The plaintiff Nos.1 and 2 and defendant Nos.1 to 3 who are
legal heirs of the deceased R. M. Patil are entitled for 1/5th share
each in item Nos.1 to 4 of the suit schedule properties which
were acquired by R.M.Patil during his lifetime. Insofar as item
No.5 i.e., library books purchased and maintained by late R. M.
Patil during his lifetime is concerned, the plaintiffs have averred
in the plaint that the value of the library books is about Rs.1 lakh
and it was purchased about 30 years back, but no documentary
evidence are produced to show the total value of the library/law
books, therefore, the plaintiffs are in no way concerned with the
library books. Therefore item No.5 is treated as valueless. Since
the first defendant was working as junior under his father till his
death i.e., 1975 and is continuing his legal profession, he is entitled
to retain the library books with him.
Draw the decree accordingly. No order as to costs."
4. We heard Mr. Salim A. Inamdar, learned counsel appearing for
the appellant and we also heard Mr. S. N. Bhat, learned senior counsel
who appears on behalf of the plaintiffs, second defendant and also the
legal representatives of the deceased third defendant.
5. Learned counsel for the appellant would address the following
submissions before us: -
He would submit that this is a case where the suit is liable
to be dismissed on the ground that there was non-joinder of
necessary parties. It is equally bad for the reason that the plaintiffs
have not scheduled all the properties which should have been
included for the purpose of partition. He would further submit
that the Plaint Schedule Properties were actually purchased out
of the Joint Family funds. These three submissions find their
foundation with the following facts. It is pointed out that admittedly
one Shri Marigowda Patil, had two sons, namely, Shri R. M.
Patil and Shri Ningana Gowda Patil. Shri R. M. Patil had three
sons and two daughters. The first plaintiff is one of the daughters.
So is the third defendant. The second plaintiff is the daughter-inlaw of Shri R. M. Patil being married to his son late Shri Vijay R.
B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]
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[2022] 13 S.C.R.
Patil. The first defendant is another son. So is the second
defendant. There were Joint Family Properties belonging to the
joint family which consisted of the grandfather of the appellant
Shri Marigowda Patil and his two sons. Those properties yielded
sufficient income and it is utilizing the same that the plaint schedule
properties were purchased. That apart, those properties should
have been reflected in the plaint schedule and the entire properties
should have been made available for the Court to make a decree
which is valid in law. Necessarily the inevitable consequence is
that the suit would fail for non-joinder of the brother of the
appellant's father (Shri R.M. Patil) who was the other co-owner/
coparcener who is conspicuous on the party array by his absence.
Next, the learned counsel would point out that at any rate the
appellant is entitled to Plaint Schedule Property Item No.3. He
points it out to be a house. He would contend that he is in the
exclusive possession of the house. He relies on evidence in the
form of Notice issued in June, 1991 and he submits that it decisively
proves that the appellant has acquired title by ouster at any rate in
regard to item No.3. He has been in exclusive possession of the
said house. He does not have any other house. Apart from being
illegal it is inequitable to throw the appellant out on the street. He
would point out that all the other siblings have houses of their
own. Next, he would point out that the appellant in his written
statement has included certain properties in the schedule, which
stand in the name of family members which he claimed were
purchased with funds of the joint family. Though the written
statement alludes to properties being properties which stood in
the name of the husbands of appellant's sisters what he presses
before us is his claim in regard to item Nos. 2 and 3 relating to
properties standing in the name of defendant No.2. He would
submit that the Trial Court has correctly found that these properties
must be treated as properties of the coparcenary. This was part
of the reasoning which impelled the Court to dismiss the suit insofar
as it related to the relief of partition. He took us to the finding of
the High Court over turning the said finding and he would complain
that the findings are insupportable with reference to the evidence
on record. He would point out that there was evidence as to the
extent of ancestral property which was noted by the Trial Court
but no challenge to the same was laid in the appeals filed by the
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respondents. He would finally conclude by pointing out that both
in law and equity this Court may pass an Order which reaches
justice to the appellant and an equitable allocation of the properties
at any rate for which this Court is adequately equipped under
Article 142 of the Constitution of India.
6. Per contra, Mr. S. N. Bhat, learned senior counsel would contend
that as far as the alleged Joint Family Properties which existed and
adverted to by the learned counsel for the appellant is concerned, the
cause of action for the present suit is the opening up of the succession
upon the death of the father of the appellant, Shri R. M. Patil on
19.10.1977. The suit in other words is instituted only for the purpose of
claiming and establishing the rights over the separate self acquired
properties of Shri R. M. Patil. He would also take us through the pleadings
and evidence to contend that there is no basis in the complaint that Joint
Family Properties had being excluded. Therefore, he contends that on
that basis there is no occasion also to implead the other branch referred
to by the appellant in the suit. He would contend that all that is required
to be found is whether the plaint schedule properties are the self acquired
properties of Shri R. M. Patil. As far as this question is concerned, the
pleadings and evidence on record clearly warranted the conclusion arrived
at and the relief which has been granted by the impugned judgment. In
regard to ouster, he would first of all point out that the pleading of the
first appellant itself is one of partial ouster, which in law is incapable of
extinguishing the title which the principle of ouster seeks to allow and
achieve. He would further contend that actually the building in question
consists of two floors. The appellant is only in possession of the Ground
Floor. He harnesses the finding of the Trial Court itself that the second
plaintiff was in possession of the First Floor and he draws our attention
to the decree passed by the Trial Court itself which is one of prohibitory
injunction in favour of the second plaintiff in regard to the First Floor. He
further contends that the very prayer of the appellant in his written
statement was that he be declared entitled to 1/4th share in the Plaint
Schedule Properties which takes in item No.3 which means that he is
admitting title of the co-owners except the first plaintiff which is
impermissible in law. Regarding the contention of the learned counsel
for the appellant that non-impleadment of the other branch, may prejudice
public interest, he would submit that it is a theoretical proposition and it
has no application in the facts of this case. The properties in question
which are alleged to exist have not been established in the evidence and
B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]
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it may not lie in the mouth of the appellant to voice this complaint. As
regards item Nos. 2 and 3, standing in the name of the second defendant
which the appellant claimed should also be partitioned, he would point
out that the finding of the Trial Court in favour of the appellant stands
correctly overturned by the High Court even though the findings could
have been better couched. He points out that the second defendant was
indeed employed and had sufficient funds and the Trial Court was mainly
guided by Exhibit D-75 which having regard to its date (17.08.1982) and
the sum involved Rs.11,330/- and the circumstances which led to it would
be sufficient to rob it of the value which was otherwise attached to it by
the Trial Court.
FINDINGS
1) WHETHER SUIT MUST FAIL ON ACCOUNT OF
NON-INCLUSION OF CERTAIN PROPERTIES AND NONJOINDER?
7. We have already noticed the genealogy of the parties in the
manner, we have referred to above. Undoubtedly, the grand parent of
the parties was one Shri Marigowda Patil. He had two sons. There is no
dispute regarding this. In the plaint, it is true that that the plaintiffs have,
no doubt, stated that Shri Marigowda Patil had another son who remained
an agriculturist. It is the further plea of the plaintiffs that Shri Marigowda
Patil had a bit of landed property which was sufficient to eke out his
livelihood. He left the landed property to the other son who remained an
agriculturist. It is the further case and which is not open to dispute also
that Shri R. M. Patil was got educated and he obtained a Degree of
Law and started practicing and later Shri R. M. Patil became a Public
Prosecutor and he resigned the post and he entered into politics. He
became a successful politician and became a Cabinet Minister holding
various portfolios. These facts are, in fact, not in dispute. The only point
to be considered under the first head of complaint of the appellant is
about the non-inclusion of the property of which there is a faint reference
in the plaint, namely, that Shri Marigowda Patil had a bit of landed
property and it was left to the other son. The appellant would lay store
by the deposition given by one of the witnesses for the plaintiffs, namely,
PW-3. He has indeed stated as follows: -
"4. I do not know the extent and also the Survey Number of the
land given by R. M. Patil to his elder brother. The above said land
is black soil land and they used to grow cotton, jawar and wheat.
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I do not know how much income they were getting from the said
agricultural property. R. M. Patil informed me about the land given
to his brother. I was visiting R.M. Patil frequently as I was residing
in Dharwad. Even after, he settled down at Bangalore also I used
to visit his house frequently. I visited him for about 20 times when
he was in Bangalore. I have not seen the deed of partition entered
into between R.M.Patil and his brother."
8. The appellant, no doubt, in his evidence has crystallized the
extent in somewhat greater detail by stating that the property involved,
which was Joint Family Property, was about 46 acres of Agricultural
Land.
9. It is not in dispute that the land which is alluded to is Agricultural
Land. It is highly relevant to notice, however, what the appellant has
deposed in this regard: -
"5. Since 33 years I have been practicing as an Advocate. My
Advocate prepared the written statement on my instructions, it is
true that in my written statement have claimed that myself is a
kartha of family and looking after the plaint schedule property as
Kartha of the family. It is true that during the lifetime of my father,
my father was looking after the plaint schedule property. It is true
that I have not produced any document in respect of the property
referred to at para-2 of my affidavit. I am having the documents
pertains to the property referred to in my affidavit. I have got RR
extracts, Khata extracts of those lands standing in the name of
Ninganagowda Patil. There is no difficulty for me to produce the
said documents before the Court. There are 12 Sy. Nos. The total
extent of said Sy. Nos. is 44 acres. I cannot give the boundaries
of the above property. It is true that I have claimed 1/4th share in
the plaint schedule properties. I have not sought for any share in
the properties mentioned in my affidavit evidence."
(Emphasis supplied)
10. This is the state of the pleading and evidence in support of the
existence of the property other than what has been scheduled by the
plaintiffs and for which partition is sought. It is true that the law looks
with disfavor upon properties being partitioned partially. The principle
that there cannot be a partial partition is not an absolute one. It admits of
exceptions. In Mayne's 'Treatise on Hindu Law & Usage' 17th Edition,
Paragraph 487, reads as follows:
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"487. Partition suit should embrace all property - Every suit for a
partition should ordinarily embrace all joint properties. But this is
not an inelastic rule which admits circumstances of a particular
case or the interests of justice so require. Such a suit, however,
may be confined to a division of property which is available at the
time for an actual division and not merely for a division of status.
Ordinarily a suit for partial partition does not lie. But, a suit for
partial partition will lie when the portion omitted is not in the
possession of coparceners and may consequently be deemed not
to be really available for partition, as for instance, where part of
the family property is in in the possession of a mortgagee or lessee,
or is an impartible Zamindari, or held jointly with strangers to the
family who have no interest in the family partition. So also, partial
partition by suit is allowed where different portions of property lie
in different jurisdictions, or are out of British India. When an item
of property is not admitted by all the parties to the suit to be their
joint property and it is contended by some of them that it belongs
to an outsider, then a suit for partition of joint property excluding
such item does not become legally incompetent of any rule against
partial partition."
11. In the facts of this case having noticed the state of the pleadings
and the evidence, we are of the view that the interest of justice lies in
rejecting the appellant's contention. The appellant has not been able to
clearly establish the exact extent or identity of the property available by
way of ancestral property. Despite claiming to having documents relating
to the properties and admitting to having no difficulty to produce them,
he does not produce them. He is unable to even give the boundaries. It
is obvious that he does not claim to be in possession of the said properties
even if it be as a co-owner on the basis that it is ancestral property. His
evidence discloses that in reality and on the ground these properties
could not be said to be actually available for the parties to the present
suit to lay claims over them. Properties not in the possession of cosharers/coparceners being omitted cannot result in a suit for the partition
of the properties which are in their possession being rejected.
12. The case that is set up by the plaintiffs and which is sought to
be drawn upon by the appellant is that the grandfather of the appellant
had two sons, including his father and since there was this extent of
property which is spoken by and since that is not included, it would be
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contrary to public interest also to deprive the other sharer in the joint
family, namely, the brother of the appellant's father an opportunity to
appear in the suit and establish that the plaint schedule properties were
acquired with the help of joint family funds in which they also had a
share. We must notice that while it is true, there is no document produced
by which it can be established that there was a partition by which the
properties stood allotted to the father's brother of the first appellant.
The case which has been set up apparently is more of the nature of an
arrangement between the parties by which the appellant's grandfather
allotted the property to his other son (appellant's uncle). DW3, who is
the 2nd defendant, speaks of a relinquishment by his father.
13. There is the uneducated brother of appellant's father who
was into agriculture who was given the property in question and the
appellant's father went on to become a successful advocate and pursued
with success also a career in politics. It may have so happened that the
said property which is targeted by the appellant may be property in which
Sh. R.M. Patil has abandoned his rights. We would not wish to go further
into this matter, noticing the aspect of the matter already discussed.
Therefore, this appears to be a case where finally before the Court,
there is dearth of material to establish both the extent and the identity of
the so-called joint family property which is not included in the plaint.
Interestingly, the other branch has not come forward with any complaint
despite the fact that this is a litigation of the year which commenced in
the year 2003. No doubt, they have not been made parties and we need
not make any observation in this regard. If the finding that the plaint
schedule properties are the separate properties of R.M. Patil is
invulnerable that would conclusively rule out the need to implead the
appellant's uncle or his successor in interest. Suffice it to say in the facts
of this case, we do not think that the appellant should be permitted to
persuade us to non-suit the plaintiffs on this ground.
14. Yet another aspect which we cannot overlook is that the
plaintiffs have proceeded to institute the suit on a particular cause of
action. As pointed out by Mr. S. N. Bhat, learned senior counsel, the
appellant could not have brought the present suit till the year, 1977 when
Sh. R. M. Patil was alive. This is for the reason that the cause of action
for the present suit is based on the rights of the plaintiff to the separate
and self acquired properties of Sh. R. M. Patil. The parties do not have
any birth right in the said properties and they could not have brought a
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suit based on such a right. The cause of action arose therefore only
upon his death and on the basis of intestate succession plaintiffs have
brought the present suit. A suit for partition in regard to ancestral property/
joint family property on the other hand would be premised on birth right.
15. In this regard we may notice two aspects. Order II Rule 3 of
the Code of Civil Procedure, 1908 reads as follows:
"3. JOINDER OF CAUSES OF ACTION. -
(1) Save as otherwise provided, a plaintiff may unite in the same
suit several causes of action against the same defendant, or the
same defendants jointly; and any plaintiffs having causes of action
in which they are jointly interested against the same defendant or
the same defendants jointly may unite such causes of action in
the same suit.
(2) Where causes of action are united, the jurisdiction of the Court
as regards the suit shall depend on the amount or value of the
aggregate subject-mattersat the date of instituting the suit."
16. Order I Rule 3 speaks about the persons who may be made
parties. Interpreting these rules, this Court in Iswar Bhai C. Patel alias
Bachu Bhai Patel v. Harihar Behera and Another1 held inter alia as
follows:
"14. These two provisions, namely, Order 1 Rule 3 and Order 2
Rule 3 if read together indicate that the question of joinder of
parties also involves the joinder of causes of action. The simple
principle is that a person is made a party in a suit because there is
a cause of action against him and when causes of action are
joined, the parties are also joined."
On the cause of action in this case, there is no warrant to complain
against the non-impleadment of the appellant's uncle or his successors
in interest. We may also point out that Order II Rule 3 does not compel
a plaintiff to join two or more causes of action in a single suit. The 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
the plaintiff to join together different causes of action. No doubt it is a
different matter that if there is a misjoinder of causes of action, the
1 AIR 1999 SC 1341
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power of the court as also the right of the parties to object are to be dealt
with in accordance with law which is well settled.
17. The Code of Civil Procedure indeed permits a plaintiff to join
causes of action but it does not compel a plaintiff to do so. The
consequences of not joining all claims arising from a cause of action
may be fatal to a plaintiff and we are not in this case to predicate for
what would happen in a future litigation. That would at any rate not
advance the case of the appellant. Hence for all these reasons, we are
of the view that contention of the appellant, must fail.
18. We have no quarrel with the proposition that the non-joining
of necessary parties is fatal but in the facts of this case, on the cause of
action which is projected in the plaint and the schedule of properties
which has been made by the plaintiffs, we would not think that the nonjoinder of the uncle of the appellant or his legal representatives would
imperil the suit filed by the plaintiffs.
2. WHETHER PLAINT SCHEDULE PROPERTIES ARE
SEPARATE PROPERTIES OF SHRI. R.M. PATIL?
19. The next question is whether the plaint schedule properties
must be found to be the self acquired and separate properties of Shri R.
M. Patil. In this regard, we must notice the pleadings first in the plaint.
It is stated, inter alia, in paragraph 4 as follows:-
"4. The Suit Schedule properties at item no.1 house property
at Dharwar, item no.2 a site situated at Dharwar, item No.3 a
house property consisting of ground and first floor situated at Palace
Orchards at Bangalore, Item No.4, the fiat car and item No.5 the
library worth rs.1 Lakh, were acquired by him (herein after referred
to as "Suit Schedule Properties" for brevity). They are self
acquired properties, originally belonged to Late R.M. Patil S/o
Marigowda."
The answer to this pleading is found in paragraph 6 of the appellant's
Written Statement, which reads as follows: -
"6. This defendant submits that the allegations made in
paragraphs 2 to 8 of the plaint is admitted."
20. Thus, the specific allegation that the plaint schedule properties
were self-acquired properties of R.M. Patil, was not only not denied but
it is admitted expressly. If that were not enough the defendant when it
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came to adducing evidence has fortified the plaintiffs in their case that
the plaint schedule properties were separate properties and he deposed
as follows: -
"6. It is true that Ninganagowda and his children are not concerned
to the suit schedule property. It is true that suit schedule properties
are the self acquired properties of R. M. Patil. The title deeds in
respect of the suit schedule properties stand in the name of
R.M.Patil. It is true that after the demise of my father, I gave an
affidavit before the revenue authorities seeking chance of entries
in the name of myself, my brothers, my mother and my sisters. It
is true that the document which I am seeking now is the certified
copy of the letter addresses by me to the Revenue Officer,
Dharwad. The same is marked as Ex. P45. It is true that suit
schedule Item No. 3 was allotted to my father by the CITB and
my father paid the sale price towards the same. It is true that by
obtaining loan my father constructed the house in the above said
property. It is not true to suggest that my father discharged the
above said debt out of joint earnings. We discharged the said debt
in the year 1975..."
The learned counsel for the appellant made an attempt to persuade
us to hold that the sentence that the properties were the self-acquired
properties of his father may be viewed in context and isolated piece of
deposition should not overwhelm a large body of deposition which exists
otherwise. His deposition that Ningengowda and his children are not
concerned to the suit property is fatal to the appellant case that their
absence in the party array is fatal to the plaintiffs claim. It further
establishes beyond doubt that the next sentence is an admission which
cannot be said to be a mistake or capable of being explained away. We
would not think that we should permit the appellant to do that. This is for
the reason that the appellant had clearly admitted that the plaint schedule
properties were the self-acquired properties which belonged to Sh. R.M.
Patil. The appellant, admittedly, is an Advocate.
OUSTER
21. The next contention raised is one of ouster. In P. Lakshmi
Reddy v. L. Lakshmi Reddy2, it is held inter alia as follows: -
"4. Now, the ordinary classical requirement of adverse possession
is that it should be nec vi nec clam nec precario. (See Secretary
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of State for India v. Debendra Lal Khan, 61 Ind App 78 at P 82
(AIR 1934 PC 23 at p.25) (A). 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, 27 Ind App 136 at p.140 (PC)(B). 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 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 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 derogation of
the other co-heir's title. (See Corea V. Appuhamy, 1912 AC 230
(C). 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. There are cases which have held that adverse possession
and ouster can be inferred when one co-heir takes and maintains
notorious exclusive possession in assertion of hostile title and
continues in such possession for a very considerable time and the
excluded heir takes no steps to vindicate his title. Whether that
line of cases is right or wrong we need not pause to consider. It is
sufficient to notice that the Privy Council in N. Varada Pillai v.
Jeevarathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparently
with approval a passage from Culley v. Deod Taylerson, (1840) 3
P & D 539; 52 RR 566 (E) which indicates that such a situation
may well lead to an inference of ouster "if other circumstances
concur". (See also Govindrao v.