Case: B. R. PATIL Vs. TULSA Y. SAWKAR &amp; ORS

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 Honble 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.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.XXII Addl. City Civil Judge,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 theXXII Addl. City Civil Judge,Bangalore in O.S. No.7944/2003 in respect of partition of suit schedule properties, is set aside. The 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.

Reasoning:
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-3.8. 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.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 appellants 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 co-sharers/coparceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected.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 fathers 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 appellants grandfather allotted the property to his other son (appellants uncle). DW3, who is the 2nd defendant, speaks of a relinquishment by his father.13. There is the uneducated brother of appellants father who was into agriculture who was given the property in question and the appellants 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 appellants 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 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.On the cause of action in this case, there is no warrant to complain against the non-impleadment of the appellants 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.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 non-joinder of the uncle of the appellant or his legal representatives would imperil the suit filed by the plaintiffs.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.In P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, 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 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-heirs 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. Rajabai, AIR 1931 PC 48 (F) It may be further mentioned that it is well-settled that the burden of making out ouster is one the person claiming to displace the lawful title of a co-heir by his adverse possession.23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita and Others (2004) 1 SCC 271 the court inter alia held as follows:31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28)27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314] which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC 345].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 prescribed by law.32. Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCC 62] it is stated: (SCC pp. 65-66, para 7)It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co- sharers.It has further been observed that: (SCC p. 66, para 9)9. In our view, the correct legal position is that possession of a property belonging to several co- sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co- sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.24. The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In the case 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 (1990) 1 SCC 345, mere 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.26. Therefore, the appellant has taken up the plea curiously that in view of the correspondence between the first plaintiff and the appellant and the delay with which the suit was filed, the first plaintiff had no right to demand the partition. This stand is further fortified by the prayer in the written statement that the appellant may be allotted 1/4th share which means appellant intended to exclude by the plea of ouster only the first plaintiff.We are afraid that a plea by which a co-owner seeks to only partially oust one co-owner as such does not commend itself to us. As pointed out by Mr. S. N. Bhat, learned senior counsel for the appellant the other co-owners do not dispute the title of the first plaintiff. The appellant curiously does set up exclusive title in himself as he is claiming 1/4th share thereby admitting the title of the other four siblings. The inconsistency and the dichotomy undermines the case of ouster as one of the body of co-owners cannot oust another whose title is not disputed by others and, what is more, their title is admitted by the co-owner, who sets up a plea of ouster. In such circumstances, we do not think that even the plea is one which is tenable in law. That apart what is actually relied on is a letter which is the reply of the appellant to the letter sent by the Ist plaintiff.27. The very essence of adverse possession and therefore 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. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his fathers death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right.28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on partial ouster as it were and answered the issue against the appellant. Therefore, this is a case where the appellant has against him concurrent findings of two Courts and in this appeal which is generated by special leave, we are not released from the trammels of Article 136 in the matter of overturning such findings and we cannot certainly classify the findings in this regard in the totality of facts to be such a finding that warrants it being upset.As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Sh. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included. Even proceeding on the basis that there was a joint family consisting of Sh. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well.30. 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. We must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, we do 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.