NAGABHUSHANAMMAL (D) BY LRS. versus C. CHANDIKESWARAL!NGAM
[2016] 2 S.C.R. 19, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Issues
[2016] 2 S.C.R. 19 
NAGABHUSHANAMMAL (D) BY LRS. 
v. 
C. CHANDIKESWARAL!NGAM 
(Civil Appeal Nos. 1858-1859 of20! 6) 
FEBRUARY 26, 2016 
[KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ_J 
Partition - Suit for partition - Dismissed by trial court on the 
ground that it was hit by principle of res judicata in view of dismissal 
of an earlier suit filed by the plaintiff in respect of the same property 
and also on the ground that the defendants were in adverse 
possession of the property - Order of trial court reversed by first 
appellate court - High Court, in second appeal, restored order of 
· trial court - On appeal, held: The cause of action of earlier suit 
being different from the present suit, dismissal thereof would not 
operate as res judicata - The defendants a/so cannot be said to be 
in adverse possession of the property - Possession of one co-owner 
is presumed to be on behalf of all co-owners unless it is established 
that such possession by the co-owner is in denial of title of co-
owners and the possession is in hostility to co-owners by exclusion 
of them - However, lo put an end to the dispute, matter settled 
between the parties whereby the plaintiffs shall be entitled to 35% 
and defendants to 65% share. 
Words and Phrases - 'Res judicata' - Meaning of - Discussed 
Disposing of the appeals, the Court 
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HELD : 1.1 'Res jll(/iC{lf(I' literally means a "thing 
adjudicated" or "an issue that has been definitively settled by 
judicial decision;'.
The principle operates as a bar to try the same 
issue once over. It aims to prevent multiplicity of proceedings 
and accords finality to an issue, which directly and substantially 
had arisen in the former suit between. the same parties or their G 
privies and was decided 'and has become final, so that the parties 
are not vexed twice over; vexatious litigation is put an end to 
and valuable time of the court is saved. [Para 14] [25-A-B] 
Sulochanna Amma v. Narayanan Nair (1994) 2 SCC 
14: 1993 (2) Suppl. SCR 520; Jaswant Singh v. 
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SUPREME COURT REPORTS 
[2016) 2 S.C.R. 
Custodian of Evacuee Property (1985) 3 SCC 648:1985 
(1) Suppl. SCR 331; Kunjan Nair Sivaraman Nair v. 
Narayanan Nair (2004) 3 SCC 277 : 2004 (2) SCR 
202 - referred to. 
Black'.~ Law Dictionary. 8'h Edition, p.1337; Halsburys 
Laws of England (4'" Edition) - referred to. 
1.2 The suit filed by the plaintiff in 1962, based on the 
settlement deed executed by her husband in her favour and the 
sufferance of the dismissal of the suit, will not, in any way, be a 
bar for making a claim for her share, if any, of the family property, 
if otherwise permissible under law. The 1962 suit for the entire 
property was based on a settlement deed and it was a suit for 
possession. Whereas, the 1988 suit for partition was for plaintiff's 
one-half share in the property based on her birth right. Cause of 
action is entirely different. [Para 18] [26-C-D] 
2. Ouster is a weak defense in a suit for partition of family 
property and it is strong if 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. 
Possession of one co-owner is presumed to be on behalf of all co-
owners unless it is established that the possession of the co-
owner is in denial of title of co-owners and the possession is in 
hostility to co-owners by exclusion of them. There has to be 
open
denial of title to the parties who are entitled to it by excluding 
and ousting them. [Paras 20 and 21] [26-E) 
Syed Shah Ghu/am Ghouse Mohiuddin and others v. 
Syed Shah Ahmed Mohiuddin Kamisu/ Quadri and Ors 
(1971) 1 SCC 597; P. Lakshmi Reddy v. R. Lakshmi 
Reddy AIR 1957 SC 1789; Vidya Devi v. Prem Prakash 
(1995) 4 SCC 496: 1995 (1) Suppl. SCR 316 - relied 
on. 
3. With a view to putting an end to five decades old disputes 
between a sister and brother, to avoid any further litigation and 
to get the families to reconcile and restore peace, the suggestion 
of the Court for a reasonable settlement, a solution has evolved. 
Accordingly, it is o~dcred that the appellants shall be entitled to
NAGABHUSHANAMMAL (D) BY LRS. v. C. 
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35% and the respondent 65% share. Let the suit property be 
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accordingly partitioned. If it is found that it is not possible to do 
so by metes and bounds, let the property be sold and proceeds 
shared accordingly. [Para 25] [28-E-G] 
Case Law Reference 
1993 (2) Suppl. SCR 520 
referred to. 
Para 14 
1985 (1) Suppl. SCR 331 
referred to. 
Para 15 
2004 (2) SCR202 
referred to. 
Para 16 
(1971) 1 sec 597 
relied on. 
Para 21 
AIR 1957 SC 1789 
relied on. 
Para 22 
1995 (1) Suppl. SCR 316 
relied on. 
Para 23 
ClVlLAPPELLATEJURlSDlCTlON: Civil Appeal Nos. 1858-
1859 of2016 
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From the Judgment and Order dated 17.11.2008 of the High Court 
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of Judicature at Madras in S. A. No. 1792 of 1992 and C. M. P. No. 
19753 of2004 
K. V. Vishwanathan, Sr. Adv., B. Ragunath, Vijay Kumar, Advs. 
for the Appellant. 
V. K. Shukla, Ms. Anchal Mehrotra, K. K. Mohan, Advs. for the 
Respondent. 
The Judgment of the Court was delivered by 
KURIAN, J.: I. Delay condoned. Substitution allowed. Leave 
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granted. 
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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-
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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 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
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 Yeerammal. After 
the death ofVeerammal, the property vested equally on the plaintiff and 
Chandrasekaran, the defendant's father. On the death ofChandrasekaran 
in I 956, his half share of the suit property vested on the defendant and 
his mother Saradhambal, the 11 idow 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 I 962 on the file of the VIl Ass it., 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 Yeerammal in favour
of her son-in-law, K. Subramanian, the husband 
of the plaintiff and hence dismissed the suit on 24.08. I 964. 
4. Thereafter, the p laintitf 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 I 1 of The 
Code of Civil Procedure, I 908 on the principle of resjudicata. It was 
his case that after the death of Kotilingaraja in I 955, 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 
patla 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:
NAGABHUSHANAMMAL (D) BY LRS. v. C. 
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CHANDIKESWARALINGAM [KURIAN, J.] 
"I. Whether the suit property is liable to be partitioned? 
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Whether the Plaintiff is entitled for half share in the suit 
property? 
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Whether the Defendant is liable to render accounts for the 
suit property? 
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Whether the suit is affected by res judicata? 
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To what relief the Plaintiff is entitled?" 
8. The trial court held that the suit for partition was hit by the 
principle.ofresjudicata 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. 404of1962, a suit for possession and injunctiqp based on a 
settlement deed executed by the husband of the plaintiff, was not a bar 
for.the plaintiff's suit for partition. It was held that the nature of the suit 
was different, issues were different and the whole basis of the suit was 
also different. On adverse possession, the first appellate court held that 
the plaintiff and defendant were entitled to succeed to the extent of the 
property of their mother, after the death of their father and that plaintiff 
and defendant are co-owners in joint possession under law.
Unless one 
of the co-owners, in the present case, the plaintiff, had been ousted in 
accordance with law, the plaintiff could claim the partition and there is 
no question of adverse possession. 
10. The defendant took up the matter before the High Court in 
second appeal in S.A. No. 1792of1992 leading to the impugned judgment 
dated 17.01.2008. The second appeal was admitted on the following 
substantial question of law: 
"Whether the Lower Appellate Court was right in the view it took 
that the Appellant has not established prescriptive title to the 
property?" 
11. Later, the following additional substantial question of law was 
also formulated: 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
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"Is not the Plaintiff in the present Suit bound by her admission 
made in the Plaint filed by her in 0.S. No. 40411962 regarding 
dispossession from the year 1957?" 
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12. The High Court was of the view that: 
"16. The right of the parties was directly in issue in earlier Suit in 
O.S. No. 40411962. As discussed earlier in O.S. No. 404/1962, 
Plaintiff claimed right in the entire Suit Property and sought for 
declaration and possession. Saradhambal resisted the Suit claiming 
possession and setting up right in herself. Having regard to the 
nature of plea taken by both parties, dismissal of O.S. No. 404/ 
1962 is a strong militating circumstances against the Plaintiff and 
maintainability of the Suit in O.S. No. 2062/1988. The right and 
title of the parties was directly and substantially in issue in O.S. 
No. 40411962. As per Sec. I I of CPC, if the matter was in issue 
directly and substantially in a prior litigation and decided against a 
party then the decision would be res judicata in a subsequent 
proceeding. In any event the filing of subsequent Suit 0.S. No. 
206211988 is nothing but re-litigation. After putting the case in one 
way, then putting the case in other way is nothing but abuse of 
process of Court, which was not kept in view by the trial Court." 
13. On adverse possession, despite beautifully summing up the 
legal position at paragraph-20 in the following lines,: 
"20 .... To sum up, the
basic distinction between adverse 
possession as between strangers and ouster and exclusion of co-
owners, the law is well settled that as between co-owners, there 
could be no adverse possession unless there has been a denial of 
title and an ouster to the knowledge of the other." 
the High Court entered a finding that the possession of the suit property 
by the defendant continuously since 1956 has become adverse to that of 
plaintiff. This finding by the High court is based on the averment made 
by the plaintiff in the suit that the defendant therein had trespassed into 
the suit property in 1956. In any case, according to the High Court, after 
dismissal ofO.S. No. 404of1962, the possession of the property by the 
defendant had become adverse to the plaintiff. Accordingly, the judgment 
and decree of the first appellate court was set aside and that of the trial 
court, dismissing the suit for paitition, was restored and second appeal 
was allowed. Aggrieved, the present appeal.
NAGABHUSHANAMMAL (D) BY LRS. v. C. 
CHANDIKESWARALINGAM [KURIAN, J.] 
14. 'Resjudicata' literally means a ''thing adjudicated" or "an 
issue that has been definitively settled by judicial decision".' The principle 
operates as a bar to try the same issue once over. It aims to prevent 
multiplicity of proceedings and accords finality to an issue, which directly 
. and substantially had arisen in the former suit between the same parties 
or their privies and was decided and has become final, so that the parties 
are not vexed twice over; vexatious litigation is put an end to and valuable 
time of the court is saved. (See Sulochanna Amma v. Narayanan Nair') 
15. In Jaswant Singh v. Custodian of Evacuee Property3, this 
Court has laid down a test for determining whether a subsequent suit 
is barred by res judicata: 
" .. .Jn order that a defence of res judicata may succeed it is 
necessary to show that not only the cause of action was the same 
but also that the plaintiff had an opportunity of getting the relief 
which he is now seeking in the former proceedings. The test is 
whether the claim in the subsequent suit or proceedings is in fact 
founded upon the same cause ofaction which was the foundation 
of the former suit or proceedings .... " 
16. The expression 'cause of action' came to be interpreted by 
this Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair', at 
paragraph-16. To quote: 
"16. The expression "cause of action" has acquired a judicially 
settled meaning.
In the restricted sense cause of action means 
the circumstances forming the infraction of the right or the 
immediate occasion for the action. In the wider sense, it means 
the necessary conditions for the maintenance of the suit, including 
not only the infraction of the right, but the infraction coupled with 
the right itself. Compendiously the expression means every fact 
which would be necessary for the plaintiff to prove, if traversed, 
in order to support his right to the judgment of the court. Every 
fact which is necessary to be proved, as distinguished from every 
piece of evidence which is necessary to prove each fact, comprises 
in "'cause of action"." 
17. In Halsbury's Laws of England( 4'" Edition), the expression 
has been defined as follows: 
1 Dlack 's La\\' Dictionary. 81h Edition. p.1337 
2 (1994)2SCC 14 
'\1985) 3 sec 648 
' \2004) 3 sec 277 
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A ·"Cause of action' has been defined as meaning simply a factual situation 
the existence of which entitles one person to obtain from the court a 
remedy against another person. The phrase has been held from earliest 
time to include every fact which is material to be proved to entitle the 
plaintiff to succeed, and every fact which a defendant would have a 
B right to traverse. 'Cause of action' has also been taken to mean that 
particular act on the part of the defendant which gives the plaintiff his 
cause of complaint, or the subject-matter of grievance founding the action, 
not merely the technical cause of action." 
18. The suit filed by the plaintiff in 1962, based on the settlement 
deed executed by her husband in her favour and the sufferance of the 
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dismissal of the suit, will not, in any way, be a bar for making a claim for 
her share, if any, of the family property, if otherwise permissible under 
law. As succinctly addressed by the first appellate court, the 1962 suit 
for the entire property was based on a settlement deed and it was a suit 
for possession. Whereas, the 1988 suit for partition was for plaintiff's 
D one-half share in the property based on her birth right. Cause of action is 
entirely different. 
19. Thus, the High Court in our opinion is not right on the point of 
res judicata. 
20. The other main defense in the suit is ouster and limitation. 
E Ouster is a weak defense in a suit for partition of
family property and it 
is strong if the defendant is able to establish consistent and open assertion 
of denial of title, long and uninterrupted possession and exercise ofright 
of·exclusive ownership openly and to the knowledge of the other co-
owner 
21. This court in Syed Shah Ghulam Ghouse Mohiuddin and others 
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v. Syed Shah Ahmed Mohiuddin Kamisul Ouadri and Ors; held that 
possession of one co-owner is presumed to be on behalf of all co-owners 
unless it is established thatthe possession of the co-owner is in denial of 
title of co-owners and the possession is in hostility to co-owners by 
exclusion of them. It was further held thatthere has to be open denial of 
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22. A three judge bench of this com1 in P.Lakshmi Reddy v. 
R.Lakshmi Reddy', while examining the necessary conditions for 
applicability of doctrine of ouster to the shares of co-owners, held as 
follows: 
' ( 1911 l 1 sec 597 
'AIR 1957 SC 1789
NAGABHUSHANAMMAL (D) BY LRS. v. C. 
CHANDIKESWARALINGAM [KURIAN, J.] 
"4. Now, the ordinary classical requirement of adverse possession 
is that it should be nee vi nee clam nee precario. (See Secretmy 
of State for India v. Debendra Lal Khan [ ( 1933) LR 61 IA 78, 
82] ). 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 [ 
(I 900) LR 27 IA 136, 140] ). 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 
cannot render his possession adverse to the other co-heir not in 
possession merely by any secret hostile animus on his own part in 
derogation of the other co-heir's title. (See Cores v. Appuhamy 
[( 1912) AC 230)). 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." 
23. This Court in Vidya Devi v. Prem Prakash' held that: 
"28. 'Ouster' docs 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 ofother 
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 
rescribed by law." 
'l t 995) 4 sec 496 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
24. In Civil Suit O.S. No. 404of1962, filed by the plaintiff in the 
court of VII Assistant City Civil Judge, it was the stand of the plaintiff 
that she had been dispossessed from the property in the year 1957. 
Defendant had taken a plea at paragraph-14 of the written statement 
that "after the death of Kotilingaraja in 1955, the property vested 
on his son Chandrasekaralinga111 and after his death in 1956 on 
his son this defendant, since then this defendant has been in exclusive 
possession and enjoyment of the suit property paying the property 
tax etc., with the pal/a in his na111e". At Paragraphs-28 and 29 of the 
written statement also, the defendant had taken a specific plea on hostile 
animus and exclusive possession. The averments read as follows: 
"28. This defendant submits that for the past 30 years and more 
he has been in exclusive possession of the suit property and 
Plaintiff's claim is also barred by adverse possession and limitation. 
29. This defendant states that Patta over the suit property has 
been ordered to be registered in his name and the claim of this 
plaintiff was rejected by the Settlement Enquiry Tahsildar, by his 
order dated 14.11.1959, after due enquiry and notice to parties." 
25. The above being the emerging true factual and correct legal 
position, with a view to putting an end to five decades old disputes 
between a sister and brother, to avoid any further litigation and
to get the 
families to reconcile and restore peace, we put a suggestion for a 
reasonable settlement. Thanks to the sincere cooperation extended by 
Sri Viswanathan, learned Senior Counsel for the appellant, Sri V. K. 
Shukla, learned Counsel for the respondent and the cooperation extended 
by the parties themselves, it is heartening to note that a solution has 
evolved. Accordingly, it is ordered that the appellants shall be entitled to 
35% and the respondent 65%. Let the suit property be accordingly 
partitioned. If it is found that it is not possible to do so by metes and 
bounds, let the property be sold and proceeds shared accordingly. We 
direct the Principal City Civil Judge, Madras to take the required steps 
to work out this order and finalise everything expeditiously, and in any 
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case, within three months from the date of production ofa copy of this 
judgment. The appeals are disposed of accordingly. 
26. There shall be no order as to costs. 
Kalpana K. Tripathy 
Appeals disposed of. 
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