B. R. PATIL versus TULSA Y. SAWKAR & ORS.

[2022] 13 S.C.R. 569

B. R. PATIL

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 ofcauses of action – Order II r. 3 does not compel plaintiff to jointwo or more causes of action in single suit - The failure to jointogether all claims arising from cause of action will be visitedwith consequences proclaimed in Order II r. 2 - CPC permits aplaintiff to join causes of action but it does not compel plaintiff todo so.

Code of Civil Procedure, 1908 - Partition -Lawlookswithdisfavor upon properties being partitioned partially- Theprinciplethattherecannotbeapartialpartition is not an absoluteone - It admits of exceptions.

Code of Civil Procedure, 1908 – Necessary Party - Non-joining of necessary parties is fatal.

Possession –Adverse Possession – Ouster – Possession of aco-owner however long it may be hardly by itself will constituteouster - In the case of co-owner, it is presumed that he possesses theproperty 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 indispensableeven in plea of ouster - There is the additional requirement in thecase of ouster that the elements of adverse possession must be shownto have been made known to the co-owner - This is apparently forthe reason that the possession of co-owner is treated as possessionof other co-owners – The very essence of adverse possession andouster lies in party setting up hostile title in himself - Thepossession of co-owner is ordinarily on his behalf and also onbehalf 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 asserta title which is not referable to lawful title.

APartition – Right to sue for – Ancestral and Self acquiredproperty – The parties do not have any birth right in the self acquiredproperties and they cannot bring suit based on such right – Asuit for partition in regard to ancestral property/joint family propertywould be premised on birth right.BCode of Civil Procedure, 1908 – Properties not in thepossession of co-sharers/coparceners being omitted cannot resultin suit for the partition of the properties which are in theirpossession being rejected.

Dismissing the appeals, the CourtC

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 anotherson who remained an agriculturist. It is the further plea of theplaintiffs that ‘MP’ had bit of landed property which was sufficientDto eke out his livelihood. He left the landed property to the otherson who remained an agriculturist. It is the further case and whichis not open to dispute also that ‘R’ was got educated and heobtained Degree of Law and started practicing and later ‘R’became Public Prosecutor and he resigned the post and heentered into politics. He became successful politician andEbecame Cabinet Minister holding various portfolios. These factsare, in fact, not in dispute. The only point to be considered underthe first head of complaint of the appellant is about the non-inclusion of the property of which there is faint reference in theplaint, namely, that ‘MP’ had bit of landed property and it wasFleft to the other son. The appellant would lay store by thedeposition given by one of the witnesses for the plaintiffs, namely,PW-3.The Court is of the view that the interest of justice lies inrejecting the appellant’s contention. The appellant has not beenable to clearly establish the exact extent or identity of theproperty available by way of ancestral property. Despite claimingGto having documents relating to the properties and admitting tohaving no difficulty to produce them, he does not produce them.He is unable to even give the boundaries. It is obvious that hedoes not claim to be in possession of the said properties even ifit be as co-owner on the basis that it isancestral property. HisHevidence discloses that in reality and on the ground these

properties could not be said to be actually available for the partiesto the present suit to lay claims over them. Properties not in thepossession of co sharers/coparceners being omitted cannot resultin suit for the partition of the properties which are in theirpossession being rejected. [Paras 7 & 11][578-D-G; 580-E-G]

2.On the cause of action in this case, there is no warrant tocomplain against the non-impleadment of the appellant’s uncleor his successors in interest. We may also point out that Order IIRule 3 does not compel plaintiff to join two or more causes ofaction in single suit. The failure to join together all claims arisingfrom cause of action will be visited with consequencesproclaimed in Order II Rule 2. Order II Rule 3 permits the plaintiffto join together different causes of action. No doubt it is differentmatter that if there is misjoinder of causes of action, the powerof the court as also the right of the parties to object are to bedealt with in accordance with law which is well settled.The Courthas no quarrel with the proposition that the non-joining ofnecessary parties is fatal but in thefacts of this case, on the causeof action which is projected in the plaint and the schedule ofproperties which has been made by the plaintiffs, the Court wouldnot think that the non-joinder of the uncle of the appellant or hislegal representatives would imperil the suit filed by theplaintiffs.[Paras 16 & 18][582-F-H; 583-C-D]3.The possession of co-owner however long it may be,hardly by itself, will constitute ouster. In thecase of co-owner, itis presumed that he possesses the property on behalf of the entirebody of co-owners. Even non-participation of rent and profits byitself need not amount to ouster. The proof of the ingredients ofadverse possession are undoubtedly indispensable even in pleaof ouster. However, there is the additional requirement in thecase of ouster that the elements of adverse possession must beshown to have been made known to the co-owner. This isapparently for the reason that the possession of co-owner istreated as possession of other co-owners. While it may be truethat it may not be necessary to actually drive out the co-ownerfrom the property as noticed in Mohd. Zainulabudeen (sincedeceased) by lrs. v. Sayed Ahmed Mohideen and Others, mere

Acontinuance in the possession of co-owner does not suffice toset up plea of ouster. The possession of the co-owner will alsobe referable to lawful title. The possession of the appellant evenof the ground floor of the building on the land in question, wasentirely in accord with his right as co-owner.[Para 24][587-B-E]B

4. Coming to the equity of the matters, the complaint of theappellant is that the appellant is Senior Citizen and aged about80 years and while the other siblings have their own propertiesand only the appellant would be most adversely affected and hewill be on the streets. The Court must notice that the appealsCare only maintained against the preliminary decree by which shareshave been declared. Therefore, the Court does not see any reasonfor us to go into the question about the allotment of propertieswhich is 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

Dappellant to raise such contentions as are available in thisregard.Therefore, the Court sees no merit in the appeals. Theappeals will stand dismissed.[Paras 30 & 31][591-E-G]

Mohd. Zainulabudeen (since deceased) by Lrs. v. SayedAhmed Mohideen and Others (1990) 1 SCC 345 : [1989]E2 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. LakshmiReddy AIR 1957 SC 314 : [ 1957] SCR 195; Md.FMohammad Ali (dead) by Lrs. v. JagadishKalita andOthers (2004) 1 SCC 271:[2003] 4 Suppl. SCR 325 –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2652-H2654 of 2013

From the Judgment and Order dated 14.09.2012 of the High Courtof 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 ofAdditional City Civil Judge at Bangalore is the appellant before us. Thesaid suit was filed by his sister as the first plaintiff and his sister- in-lawas the second plaintiff. The reliefs sought read as follows: -

“(1)(a) For partition and separate possession of their 1/5[th] shareeach, in the suit schedule items 1 to 3 properties by metes andbounds and 1/5[th] share each, in the sale proceeds of items 4 & 5of the suit schedule properties, after their sale.

(b) direction to the 1[st] defendant to render accounts of the rentalsreceived by him, from item no. 1 and 3 of the suit scheduleproperties from 1983 onwards till the date of suit and for partitionof 1/5[th] share of each plaintiff, in the said rentals.

(c) For an enquiry into the rentals to be received by the 1[st] defendantfrom suit items 1 & 3 during the pendency of the suit and forpartition of 1/5[th] share of each plaintiff, and

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

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

(2) For Perpetual injunction restraining the 1[st] defendant frominterfering with the peaceful possession and enjoyment of 1[st] floorof item no. 3 of the suit schedule property and to park the car inthe premises of the item No. 3 by the 2[nd] plaintiff.”

2. The Trial Court partly decreed the suit. It granted prohibitoryinjunction in favour of the second plaintiff.

ORDER

“The suit is decreed in part.

The claim of plaintiff for partition and separate possessionof their alleged 1/5[th] share each and other consequential reliefs as

prayed in Paras (b) to (d) is dismissed.

The reliefs claimed by defendant No. 1, defendant No. 2and defendant No. 3 are disallowed.

The claim of plaintiff No. 2 for the relief of injunction isgranted in the following terms:

Defendant No. 1, his men, agents etc., are directed not tointerfere with peaceful possession and enjoyment of 1[st] floor ofitem No. 3 of the suit schedule by plaintiff no. 2 and her right topark the car in the premises of Item No. 3 till the division in theestate of the joint family takes place by metes and bounds, inaccordance with law.

In the circumstances of the case, parties are left to beartheir own costs.

Dictated to the Judgment Writer, transcribed by her,corrected and then pronounced by me in open court this the 9[th]day of July, 2005.

(I.S. Antin)

XXII Addl. City Civil Judge,

Bangalore”

3. Feeling aggrieved by the aforesaid judgment, three separateappeals have been generated. RFA No.1503/2005 was filed by theappellant. RFA No.1296/2005 was filed by the plaintiffs whereas RFANo.1369/2005 was filed by the second defendant in the suit. By theimpugned judgment, the High Court has allowed the appeal filed by theGplaintiffs and the second defendant and dismissed the appeal filed by thefirst defendant. Resultantly, the High Court has decreed the suit in thefollowing manner: -

“33. Accordingly, the judgment dated 08.07.2005 passed by theXXII Addl. City Civil Judge, Bangalore in O.S. No.7944/2003 inrespect of partition of suit schedule properties, is set aside. The

appeals are allowed insofar as partition of item Nos. 1 to 4 ofplaint schedule properties. The suit for partition of item No.5 ofthe plaint schedule property is dismissed.

34. The plaintiff Nos.1 and 2 and defendant Nos.1 to 3 who arelegal heirs of the deceased R. M. Patil are entitled for 1/5th shareeach in item Nos.1 to 4 of the suit schedule properties whichwere acquired by R.M.Patil during his lifetime. Insofar as itemNo.5 i.e., library books purchased and maintained by late R. M.Patil during his lifetime is concerned, the plaintiffs have averredin the plaint that the value of the library books is about Rs.1 lakhand it was purchased about 30 years back, but no documentaryevidence are produced to show the total value of the library/lawbooks, therefore, the plaintiffs are in no way concerned with thelibrary books. Therefore item No.5 is treated as valueless. Sincethe first defendant was working as junior under his father till hisdeath i.e., 1975 and is continuing his legal profession, he is entitledto 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 forthe appellant and we also heard Mr. S. N. Bhat, learned senior counselwho appears on behalf of the plaintiffs, second defendant and also thelegal representatives of the deceased third defendant.

5. Learned counsel for the appellant would address the followingsubmissions before us: -

He would submit that this is case where the suit is liableto be dismissed on the ground that there was non-joinder ofnecessary parties. It is equally bad for the reason that the plaintiffshave not scheduled all the properties which should have beenincluded for the purpose of partition. He would further submitthat the Plaint Schedule Properties were actually purchased outof the Joint Family funds. These three submissions find theirfoundation with the following facts. It is pointed out that admittedlyone Shri Marigowda Patil, had two sons, namely, Shri R. M.Patil and Shri Ningana Gowda Patil. Shri R. M. Patil had threesons and two daughters. The first plaintiff is one of the daughters.So is the third defendant. The second plaintiff is the daughter-in-law of Shri R. M. Patil being married to his son late Shri Vijay R.

Patil. The first defendant is another son. So is the seconddefendant. There were Joint Family Properties belonging to thejoint family which consisted of the grandfather of the appellantShri Marigowda Patil and his two sons. Those properties yieldedsufficient income and it is utilizing the same that the plaint scheduleproperties were purchased. That apart, those properties shouldhave been reflected in the plaint schedule and the entire propertiesshould have been made available for the Court to make decreewhich is valid in law. Necessarily the inevitable consequence isthat the suit would fail for non-joinder of the brother of theappellant’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 theappellant is entitled to Plaint Schedule Property Item No.3. Hepoints it out to be house. He would contend that he is in theexclusive possession of the house. He relies on evidence in theform of Notice issued in June, 1991 and he submits that it decisivelyproves that the appellant has acquired title by ouster at any rate inregard to item No.3. He has been in exclusive possession of thesaid house. He does not have any other house. Apart from beingillegal it is inequitable to throw the appellant out on the street. Hewould point out that all the other siblings have houses of theirown. Next, he would point out that the appellant in his writtenstatement has included certain properties in the schedule, whichstand in the name of family members which he claimed werepurchased with funds of the joint family. Though the writtenstatement alludes to properties being properties which stood inthe name of the husbands of appellant’s sisters what he pressesbefore us is his claim in regard to item Nos. 2 and 3 relating toproperties standing in the name of defendant No.2. He wouldsubmit that the Trial Court has correctly found that these propertiesmust be treated as properties of the coparcenary. This was partof the reasoning which impelled the Court to dismiss the suit insofaras it related to the relief of partition. He took us to the finding ofthe High Court over turning the said finding and he would complainthat the findings are insupportable with reference to the evidenceon record. He would point out that there was evidence as to theextent of ancestral property which was noted by the Trial Courtbut no challenge to the same was laid in the appeals filed by the

respondents. He would finally conclude by pointing out that bothin law and equity this Court may pass an Order which reachesjustice to the appellant and an equitable allocation of the propertiesat any rate for which this Court is adequately equipped underArticle 142 of the Constitution of India.

6. Per contra, Mr. S. N. Bhat, learned senior counsel would contendthat as far as the alleged Joint Family Properties which existed andadverted to by the learned counsel for the appellant is concerned, thecause of action for the present suit is the opening up of the successionupon the death of the father of the appellant, Shri R. M. Patil on19.10.1977. The suit in other words is instituted only for the purpose ofclaiming and establishing the rights over the separate self acquiredproperties of Shri R. M. Patil. He would also take us through the pleadingsand evidence to contend that there is no basis in the complaint that JointFamily Properties had being excluded. Therefore, he contends that onthat basis there is no occasion also to implead the other branch referredto by the appellant in the suit. He would contend that all that is requiredto be found is whether the plaint schedule properties are the self acquiredproperties of Shri R. M. Patil. As far as this question is concerned, thepleadings and evidence on record clearly warranted the conclusion arrivedat and the relief which has been granted by the impugned judgment. Inregard to ouster, he would first of all point out that the pleading of thefirst appellant itself is one of partial ouster, which in law is incapable ofextinguishing the title which the principle of ouster seeks to allow andachieve. He would further contend that actually the building in questionconsists of two floors. The appellant is only in possession of the GroundFloor. He harnesses the finding of the Trial Court itself that the secondplaintiff was in possession of the First Floor and he draws our attentionto the decree passed by the Trial Court itself which is one of prohibitoryinjunction in favour of the second plaintiff in regard to the First Floor. Hefurther contends that the very prayer of the appellant in his writtenstatement was that he be declared entitled to 1/4th share in the PlaintSchedule Properties which takes in item No.3 which means that he isadmitting title of the co-owners except the first plaintiff which isimpermissible in law. Regarding the contention of the learned counselfor the appellant that non-impleadment of the other branch, may prejudicepublic interest, he would submit that it is theoretical proposition and ithas no application in the facts of this case. The properties in questionwhich are alleged to exist have not been established in the evidence and

Ait may not lie in the mouth of the appellant to voice this complaint. Asregards item Nos. 2 and 3, standing in the name of the second defendantwhich the appellant claimed should also be partitioned, he would pointout that the finding of the Trial Court in favour of the appellant standscorrectly overturned by the High Court even though the findings couldhave been better couched. He points out that the second defendant wasBindeed employed and had sufficient funds and the Trial Court was mainlyguided by Exhibit D-75 which having regard to its date (17.08.1982) andthe sum involved Rs.11,330/- and the circumstances which led to it wouldbe sufficient to rob it of the value which was otherwise attached to it bythe Trial Court.CFINDINGS

1) WHETHER SUIT MUST FAIL ON ACCOUNT OFNON-INCLUSION OF CERTAIN PROPERTIES AND NON-JOINDER?

D7. We have already noticed the genealogy of the parties in themanner, we have referred to above. Undoubtedly, the grand parent ofthe parties was one Shri Marigowda Patil. He had two sons. There is nodispute regarding this. In the plaint, it is true that that the plaintiffs have,no doubt, stated that Shri Marigowda Patil had another son who remainedan agriculturist. It is the further plea of the plaintiffs that Shri MarigowdaEPatil had bit of landed property which was sufficient to eke out hislivelihood. He left the landed property to the other son who remained anagriculturist. It is the further case and which is not open to dispute alsothat Shri R. M. Patil was got educated and he obtained Degree ofLaw and started practicing and later Shri R. M. Patil became PublicFProsecutor and he resigned the post and he entered into politics. Hebecame successful politician and became Cabinet Minister holdingvarious portfolios. These facts are, in fact, not in dispute. The only pointto be considered under the first head of complaint of the appellant isabout the non-inclusion of the property of which there is faint referencein the plaint, namely, that Shri Marigowda Patil had bit of landedGproperty and it was left to the other son. The appellant would lay storeby 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 theland given by R. M. Patil to his elder brother. The above said landHis black soil land and they used to grow cotton, jawar and wheat.

I do not know how much income they were getting from the saidagricultural property. R. M. Patil informed me about the land givento his brother. I was visiting R.M. Patil frequently as I was residingin Dharwad. Even after, he settled down at Bangalore also I usedto visit his house frequently. I visited him for about 20 times whenhe was in Bangalore. I have not seen the deed of partition enteredinto between R.M.Patil and his brother.”

8. The appellant, no doubt, in his evidence has crystallized theextent in somewhat greater detail by stating that the property involved,which was Joint Family Property, was about 46 acres of AgriculturalLand.

9. It is not in dispute that the land which is alluded to is AgriculturalLand. It is highly relevant to notice, however, what the appellant hasdeposed in this regard: -

“5. Since 33 years I have been practicing as an Advocate. MyAdvocate prepared the written statement on my instructions, it istrue that in my written statement have claimed that myself is akartha of family and looking after the plaint schedule property asKartha of the family. It is true that during the lifetime of my father,my father was looking after the plaint schedule property. It is truethat I have not produced any document in respect of the property-referred to at para2 of my affidavit. I am having the documentspertains to the property referred to in my affidavit. I have got RRextracts, Khata extracts of those lands standing in the name ofNinganagowda Patil. There is no difficulty for me to produce thesaid documents before the Court. There are 12 Sy. Nos. The totalextent of said Sy. Nos. is 44 acres. I cannot give the boundariesof the above property. It is true that I have claimed 1/4th share inthe plaint schedule properties. I have not sought for any share inthe properties mentioned in my affidavit evidence.”

(Emphasis supplied)

10. This is the state of the pleading and evidence in support of theexistence of the property other than what has been scheduled by theplaintiffs and for which partition is sought. It is true that the law lookswith disfavor upon properties being partitioned partially. The principlethat there cannot be partial partition is not an absolute one. It admits ofexceptions. In Mayne’s ‘Treatise on Hindu Law & Usage’ 17[th] Edition,Paragraph 487, reads as follows:

A“487. Partition suit should embrace all property – Every suit for apartition should ordinarily embrace all joint properties. But this isnot an inelastic rule which admits circumstances of particularcase or the interests of justice so require. Such suit, however,may be confined to division of property which is available at thetime for an actual division and not merely for division of status.BOrdinarily suit for partial partition does not lie. But, suit forpartial partition will lie when the portion omitted is not in thepossession of coparceners and may consequently be deemed notto be really available for partition, as for instance, where part ofthe family property is in in the possession of mortgagee or lessee,Cor is an impartible Zamindari, or held jointly with strangers to thefamily who have no interest in the family partition. So also, partialpartition by suit is allowed where different portions of property liein different jurisdictions, or are out of British India. When an itemof property is not admitted by all the parties to the suit to be theirjoint property and it is contended by some of them that it belongsDto an outsider, then suit for partition of joint property excludingsuch item does not become legally incompetent of any rule againstpartial partition.”

11. In the facts of this case having noticed the state of the pleadingsand the evidence, we are of the view that the interest of justice lies inErejecting the appellant’s contention. The appellant has not been able toclearly establish the exact extent or identity of the property available byway of ancestral property. Despite claiming to having documents relatingto 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

Fis obvious that he does not claim to be in possession of the said propertieseven if it be as co-owner on the basis that it is ancestral property. Hisevidence discloses that in reality and on the ground these propertiescould not be said to be actually available for the parties to the presentsuit to lay claims over them. Properties not in the possession of co-sharers/coparceners being omitted cannot result in suit for the partitionGof the properties which are in their possession being rejected.

12. The case that is set up by the plaintiffs and which is sought tobe drawn upon by the appellant is that the grandfather of the appellanthad two sons, including his father and since there was this extent ofproperty which is spoken by and since that is not included, it would beH

contrary to public interest also to deprive the other sharer in the jointfamily, namely, the brother of the appellant’s father an opportunity toappear in the suit and establish that the plaint schedule properties wereacquired with the help of joint family funds in which they also had ashare. We must notice that while it is true, there is no document producedby which it can be established that there was partition by which theproperties 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 anarrangement between the parties by which the appellant’s grandfatherallotted the property to his other son (appellant’s uncle). DW3, who isthe 2[nd] defendant, speaks of relinquishment by his father.13. There is the uneducated brother of appellant’s father whowas into agriculture who was given the property in question and theappellant’s father went on to become successful advocate and pursuedwith success also career in politics. It may have so happened that thesaid property which is targeted by the appellant may be property in whichSh. R.M. Patil has abandoned his rights. We would not wish to go furtherinto this matter, noticing the aspect of the matter already discussed.Therefore, this appears to be case where finally before the Court,there is dearth of material to establish both the extent and the identity ofthe so-called joint family property which is not included in the plaint.Interestingly, the other branch has not come forward with any complaintdespite the fact that this is litigation of the year which commenced inthe year 2003. No doubt, they have not been made parties and we neednot make any observation in this regard. If the finding that the plaintschedule properties are the separate properties of R.M. Patil isinvulnerable that would conclusively rule out the need to implead theappellant’s uncle or his successor in interest. Suffice it to say in the factsof this case, we do not think that the appellant should be permitted topersuade us to non-suit the plaintiffs on this ground.

14. Yet another aspect which we cannot overlook is that theplaintiffs have proceeded to institute the suit on particular cause ofaction. As pointed out by Mr. S. N. Bhat, learned senior counsel, theappellant could not have brought the present suit till the year, 1977 whenSh. R. M. Patil was alive. This is for the reason that the cause of actionfor the present suit is based on the rights of the plaintiff to the separateand self acquired properties of Sh. R. M. Patil. The parties do not haveany birth right in the said properties and they could not have brought

Asuit based on such right. The cause of action arose therefore onlyupon his death and on the basis of intestate succession plaintiffs havebrought the present suit. 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 ofBthe Code of Civil Procedure, 1908 reads as follows:

“3. JOINDER OF CAUSES OF ACTION. -

(1) Save as otherwise provided, plaintiff may unite in the samesuit several causes of action against the same defendant, or thesame defendants jointly; and any plaintiffs having causes of actionCin which they are jointly interested against the same defendant orthe same defendants jointly may unite such causes of action inthe same suit.

(2) Where causes of action are united, the jurisdiction of the Courtas regards the suit shall depend on the amount or value of theDaggregate subject-mattersat the date of instituting the suit.”

16. Order I Rule 3 speaks about the persons who may be madeparties. Interpreting these rules, this Court in Iswar Bhai C. Patel aliasBachu Bhai Patel v. Harihar Behera and Another[1] held inter alia asfollows:E“14. These two provisions, namely, Order 1 Rule 3 and Order 2Rule 3 if read together indicate that the question of joinder ofparties also involves the joinder of causes of action. The simpleprinciple is that person is made party in suit because there isa cause of action against him and when causes of action areFjoined, the parties are also joined.”

On the cause of action in this case, there is no warrant to complainagainst the non-impleadment of the appellant’s uncle or his successorsin interest. We may also point out that Order II Rule 3 does not compela plaintiff to join two or more causes of action in single suit. The failureGto join together all claims arising from cause of action will be visitedwith consequences proclaimed in Order II Rule 2. Order II Rule 3 permitsthe plaintiff to join together different causes of action. No doubt it is adifferent matter that if there is misjoinder of causes of action, the

1 AIR 1999 SC 1341H

power of the court as also the right of the parties to object are to be dealtwith in accordance with law which is well settled.

17. The Code of Civil Procedure indeed permits plaintiff to joincauses of action but it does not compel plaintiff to do so. Theconsequences of not joining all claims arising from cause of actionmay be fatal to plaintiff and we are not in this case to predicate forwhat would happen in future litigation. That would at any rate notadvance the case of the appellant. Hence for all these reasons, we areof the view that contention of the appellant, must fail.

18. We have no quarrel with the proposition that the non-joiningof necessary parties is fatal but in the facts of this case, on the cause ofaction which is projected in the plaint and the schedule of propertieswhich has been made by the plaintiffs, we would not think that the non-joinder of the uncle of the appellant or his legal representatives wouldimperil the suit filed by the plaintiffs.

2. WHETHER PLAINT SCHEDULE PROPERTIES ARESEPARATE PROPERTIES OF SHRI. R.M. PATIL?

19. The next question is whether the plaint schedule propertiesmust 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 propertyat Dharwar, item no.2 site situated at Dharwar, item No.3 ahouse property consisting of ground and first floor situated at PalaceOrchards at Bangalore, Item No.4, the fiat car and item No.5 thelibrary worth rs.1 Lakh, were acquired by him (herein after referredto as “Suit Schedule Properties” for brevity). They are selfacquired properties, originally belonged to Late R.M. Patil S/o”Marigowda.

The answer to this pleading is found in paragraph 6 of the appellant’sWritten Statement, which reads as follows: -

“6. This defendant submits that the allegations made inparagraphs 2 to 8 of the plaint is admitted.”

20. Thus, the specific allegation that the plaint schedule propertieswere self-acquired properties of R.M. Patil, was not only not denied butit is admitted expressly. If that were not enough the defendant when it

Acame to adducing evidence has fortified the plaintiffs in their case thatthe plaint schedule properties were separate properties and he deposedas follows: -

“6. It is true that Ninganagowda and his children are not concernedto the suit schedule property. It is true that suit schedule propertiesBare the self acquired properties of R. M. Patil. The title deeds inrespect of the suit schedule properties stand in the name ofR.M.Patil. It is true that after the demise of my father, I gave anaffidavit before the revenue authorities seeking chance of entriesin the name of myself, my brothers, my mother and my sisters.Itis true that the document which I am seeking now is the certifiedCcopy of the letter addresses by me to the Revenue Officer,Dharwad. The same is marked as Ex. P45. It is true that suitschedule Item No. 3 was allotted to my father by the CITB andmy father paid the sale price towards the same. It is true that byobtaining loan my father constructed the house in the above saidDproperty. It is not true to suggest that my father discharged theabove said debt out of joint earnings. We discharged the said debtin the year 1975…”

The learned counsel for the appellant made an attempt to persuadeus to hold that the sentence that the properties were the self-acquiredproperties of his father may be viewed in context and isolated piece ofEdeposition should not overwhelm large body of deposition which existsotherwise. His deposition that Ningengowda and his children are notconcerned to the suit property is fatal to the appellant case that theirabsence in the party array is fatal to the plaintiffs claim. It furtherestablishes beyond doubt that the next sentence is an admission whichFcannot be said to be mistake or capable of being explained away. Wewould not think that we should permit the appellant to do that. This is forthe reason that the appellant had clearly admitted that the plaint scheduleproperties were the self-acquired properties which belonged to Sh. R.M.Patil. The appellant, admittedly, is an Advocate.OUSTERG21. The next contention raised is one of ouster. In P. LakshmiReddy v. L. Lakshmi Reddy2, it is held inter alia as follows: -

“4. Now, the ordinary classical requirement of adverse possessionis that it should be nec vi nec clam nec precario. (See Secretary

H2 AIR 1957 SC 314

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 beadequate in continuity, in publicity and in extent to show that it ispossession adverse to the competitor. (See Radhamoni Debi v.Collector of Khulna, 27 Ind App 136 at p.140 (PC)(B). But it iswell settled that in order to establish adverse possession of oneco-heir as against another it is not enough to show that one out ofthem is in sole possession and enjoyment of the profits, of theproperties. Ouster of the non-possessing co-heir by the co-heir inpossession who claims his possession to be adverse, should bemade out. The possession of one co-heir is considered, in law, aspossession of all the co-heirs. When one co-heir is found to be inpossession of the properties it is presumed to be on the basis ofjoint title. The co-heir in possession of the properties it is presumedto be on the basis of joint title. The co-heir in possession cannotrender his possession adverse to the other co-heir not in possessionmerely by any secret hostile animus on his own part derogation ofthe other co-heir’s title. (See Corea V. Appuhamy, 1912 AC 230(C). It is settled rule of law that as between co-heirs there mustbe evidence of open assertion of hostile title, coupled with exclusivepossession and enjoyment by one of them to the knowledge of theother so as to constitute ouster. This does not necessarily meanthat there must be an express demand by one and denial by theother. There are cases which have held that adverse possessionand ouster can be inferred when one co-heir takes and maintainsnotorious exclusive possession in assertion of hostile title andcontinues in such possession for very considerable time and theexcluded heir takes no steps to vindicate his title. Whether thatline of cases is right or wrong we need not pause to consider. It issufficient to notice that the Privy Council in N. Varada Pillai v.Jeevarathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparentlywith approval passage from Culley v. Deod Taylerson, (1840) 3P & 539; 52 RR 566 (E) which indicates that such situationmay well lead to an inference of ouster “if other circumstancesconcur”. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F) Itmay be further mentioned that it is well-settled that the burden ofmaking out ouster is one the person claiming to displace the lawfultitle of co-heir by his adverse possession.”

22. In regard to ouster, we may also notice the following decisionof this Court.

A23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalitaand Others[3] the court inter alia held as follows:

“31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] thisCourt upon referring to 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 thereshould be ouster or something equivalent to it. This was alsothe observation of the Supreme Court in P. Lakshmi Reddycase [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC314] which has since been followed in Mohd.Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC345].

28. ‘Ouster’ does not mean actual driving out of the co-sharerfrom the property. It will, however, not be complete unless it isDcoupled with all other ingredients required to constitute adversepossession. Broadly speaking, three elements are necessaryfor establishing the plea of ouster in the case of co-owner.They are (i) declaration of hostile animus, (ii) long anduninterrupted possession of the person pleading ouster, and(iii) exercise of right of exclusive ownership openly and to theEknowledge of other co-owner. Thus, co-owner, can underlaw, claim title by adverse possession against another co-ownerwho can, of course, file appropriate suit including suit for jointpossession within time prescribed by law.”

32. Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCCF62] it is stated: (SCC pp. 65-66, para 7)

“It is well settled that if co-sharer is in possession of theentire property, his possession cannot be deemed to be adversefor other co-sharers unless there has been an ouster of otherco-sharers.”

It has further been observed that: (SCC p. 66, para 9)

“9. In our view, the correct legal position is that possession ofa property belonging to several co-sharers by one co-sharershall be deemed that he possesses the property on behalf of

H3 (2004) 1 SCC 271

the other co-sharers unless there has been clear ouster bydenying the title of other co-sharers and mutation in the revenuerecords in the name of one co-sharer would not amount toouster unless there is clear declaration that title of the otherco-sharers was denied.”

24. The possession of co-owner however long it may be, hardlyby itself, will constitute ouster. In the case of co-owner, it is presumedthat 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 toouster. The proof of the ingredients of adverse possession areundoubtedly indispensable even in plea of ouster. However, there isthe additional requirement in the case of ouster that the elements ofadverse possession must be shown to have been made known to the co-owner. This is apparently for the reason that the possession of co-owner is treated as possession of other co-owners. While it may be truethat it may not be necessary to actually drive out the co-owner from theproperty as noticed in Mohd. Zainulabudeen (since deceased) by lrs.v. Sayed Ahmed Mohideen and Others[4], mere continuance in thepossession of co-owner does not suffice to set up plea of ouster. Thepossession of the co-owner will also be referable to lawful title. Thepossession of the appellant even of the ground floor of the building onthe land in question, was entirely in accord with his right as co-owner.

25. It is in this regard we may first notice the very nature of theplea taken by the appellant. It reads as follows: -

“10. It is submitted that the plaintiff No. 1 wrote letter dated20.06.1991 demanding partition of the suit schedule properties.This defendant replied on 29th June 1991 denying her claim in un-ambiguous terms. Thereafter the plaintiff No. 1kept quite till thefiling of the present suit. Thereafter it is submitted that the plaintiffNo. 1 is ousted from the joint-family and she has no right to demandthe partition by bringing the present suit. It is submitted that beingthe position the plaintiff No. 1 is not in joint possession as allegedin the plaint. Therefore, the plaintiff No. 1 has to pay court feeunder section 35(1) of the K.C.F. & S.V. Act, 1958. Similarly, theplaintiff No. 2 not being member of the joint family she also hasto pay the court fee under Section 35(1) of the K.C.F. & S.V.Act, 1958.”

4 (1990) 1 SCC 345

A26. Therefore, the appellant has taken up the plea curiously thatin view of the correspondence between the first plaintiff and the appellantand the delay with which the suit was filed, the first plaintiff had no rightto demand the partition. This stand is further fortified by the prayer inthe written statement that the appellant may be allotted 1/4th share whichmeans appellant intended to exclude by the plea of ouster only the firstBplaintiff.

We are afraid that plea by which co-owner seeks to onlypartially oust one co-owner as such does not commend itself to us. Aspointed out by Mr. S. N. Bhat, learned senior counsel for the appellantthe other co-owners do not dispute the title of the first plaintiff. TheCappellant curiously does set up exclusive title in himself as he is claiming1/4[th] share thereby admitting the title of the other four siblings. Theinconsistency and the dichotomy undermines the case of ouster as oneof the body of co-owners cannot oust another whose title is not disputedby others and, what is more, their title is admitted by the co-owner, whoDsets up plea of ouster. In such circumstances, we do not think thateven the plea is one which is tenable in law. That apart what is actuallyrelied on is letter which is the reply of the appellant to the letter sent bythe I[st] plaintiff. letter dated 20.06.1991 is written by the first plaintiff tothe appellant and the reply which is the sheet anchor of the appellant’scase is dated 20.06.1991. The latter letter, inter alia, reads as follows: -E

“4. It is indeed the height of your (if I may say so your husband’s)imagination to suddenly wake up to say that you entitled to sharein the joint family properties. As your are very well aware, thethree properties referred to in your notice all along formed part ofthe H.U.F. properties of our father and his elder brother Sri N.M.FPatil. You are very well aware of the nucleus for all the acquisitionsof the property was the H.U.F. lands measuring 44 acres situatedin vasan village in Nargud Taluk of Dharwar District. Thoughmembers of the family late acquired properties in their own names,our late father and uncle all along treated the properties as familyGproperties. There has been no severance of the H.U.F. status atany time. Even during the lifetime of our late father at no point oftime did he chose to see severance and all along treated the threeproperties as part of the H.U.F. properties. You are very wellaware of this factual position.

5. As you are aware, the family has spent large amounts to settleyou in life and more particularly for your marriage and gifted youwith jewels and other articles during the marriage to the best ofthe family’s abilities. Yet, in 1972 you, as was your want, demandedfrom our father, car for your husband who was then only aMunsiff and yet had adopted ways of aristocracy which he couldill afford and our late father at great strain to himself gifted youwith Flat Car. Again, soon after our father’s death in 1977, youhad the heart and face to demand partition even when the familywas still in mourning and our mother to satiate your greed againgave you her jewels to the exclusion of your only other sister Smt.Kasha, who is happily settled now in the United Stated. Thedemand for your so-called share which you had raised, throughyou are not entitled to the same, in the interest of peace, you weregiven all the jewels of our mother. As you are aware none of thebrothers raised any objections to the same at any time and youragreed to accept the jewels in full and final settlement and not torepeat any further claims. It is strange that 14 years after ourfather’s death you not chose to unsettled your settled claim.

7. Hence, there is no question of your being entitled to any partition.You are not entitled to any share in the properties as claimed. Atany rate, you have been expressly excluded after the death of ourfather by the gift of mother’s jewels to you in satisfaction of yourclaims, though not sustainable.”

27. The very essence of adverse possession and therefore ousterlies in party setting up hostile title in himself. The possession of co-owner is ordinarily on his behalf and also on behalf of the entire body ofthe co-owners. In the case of an ouster, the co-owner must indeed havethe hostile animus. He must assert title which is not referable to lawfultitle. Though the learned counsel for the appellant points out that thispossession started prior to 1977 in that the appellant was residing withhis father in item No.3 house from somewhere in the early seventiesand he continued to reside after his father’s death in the year 1977,when Shri R.M. Patil died in the year 1977, his possession in 1977, wasclearly referable to lawful title as co-owner entitled to inherit underSection 8 of the Hindu Succession Act, 1956. Obviously, he cannot bepermitted to set up adverse possession or ouster in the year 1977. As faras the letter which is addressed in 1991 and reply to the letter and suit

Abeing beyond 12 years from the date of his reply, again we are of theview that he cannot be permitted to succeed for more reasons than one.In the first place, we have already noticed that this is case where he issetting up ouster qua only one of the co-owners. Secondly, as it turns outcontrary to the submission of the appellant, Mr. S. N. Bhat, learnedsenior counsel for the respondents points out the appellant was not inBexclusive possession of the entire property. The appellant was inpossession 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 andwhat is more decree stands granted by the Trial Court in her favour. Infact, even the perusal of the letter relied upon by him in the year 1991Cwhich we have referred to, does not as such reflect the assertion of thehostile title different from that of co-owner. In substance, what issought to be stated is that the first plaintiff who is his sister had beengiven property including jewellery and therefore she does not have aright. He does not proclaim himself to be the absolute owner of theproperty in his own right.D28. We may additionally notice that the Trial Court has also framedan additional issue No.2, on ‘partial ouster’ as it were and answered theissue against the appellant. Therefore, this is case where the appellanthas against him concurrent findings of two Courts and in this appealwhich is generated by special leave, we are not released from theEtrammels of Article 136 in the matter of overturning such findings andwe cannot certainly classify the findings in this regard in the totality offacts to be such finding that warrants it being upset.

EXCLUSION OF ITEMS 2 AND 3 SCHEDULED INWRITTEN STATEMENT. ARE THEY SEPARATEFPROPERTIES OF THE SECOND DEFENDANT?

29. The next question which is raised relates to the non-inclusionof the properties standing in the name of second defendant that is itemNos.2 and 3 in the schedule to the written statement of the appellant. Asfar as this contention is concerned, again we do not think that there ismerit in the case of the appellant. Admittedly, the second defendant wasGeducated and became an Engineer. He was employed. What really hasweighed with the Trial Court is the fact that in view of departure fromhis obligations under bond, suit was filed and decreed against thesecond defendant who discharged his liability under D-75 dated17.08.1982 in sum of Rs.11,330/-. We must notice that item No.2Hscheduled in the written statement was purchased in the year 1976. The

property consists of plot and it was allotted to the second defendantfor 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 amountshave been paid by him from his own resources by virtue of hisemployment in India. It is not as if amount was paid in lumpsum. Asregards item No.3 in the written statement, it is flat purchased in theyear 1998. This is much after D-75 which is dated 17.08.1982. The 2[nd]defendant has deposed of working abroad. The 2[nd] defendant has spokenabout item No.3 being purchased for sum of Rs.16 lakhs. Havingregard to his qualifications, we do not think that the appellant can faultthe reversal of the finding though it may be true that the High Court hasnot dealt with it in more elaborate manner. In this regard, we maynotice that the Trial Court has proceeded on the basis that since Sh.R.M. Patil was earning as successful lawyer and he became asuccessful Politician as well, the second defendant being coparcener,item 2 and 3 should also be included. Even proceeding on the basis thatthere was joint family consisting of Sh. R. M. Patil and his sons, it isnot the law that co-owner cannot acquire his own independent orseparate properties. In such circumstances, we find there is no merit inthis argument as well.

IS THE IMPUGNED JUDGMENT INEQUITABLE?

30. Coming to the equity of the matters, the complaint of theappellant is that the appellant is Senior Citizen and aged about 80 yearsand while the other siblings have their own properties and only the appellantwould be most adversely affected and he will be on the streets. Wemust notice that the appeals are only maintained against the preliminarydecree by which shares have been declared. Therefore, we do not seeany reason for us to go into the question about the allotment of propertieswhich is matter to be gone into in the final decree proceedings. As towhat is to be actual division of the properties, it is for the appellant toraise such contentions as are available in this regard.

31. Therefore, we see no merit in the appeals. The appeals willstand dismissed. Parties are left to bear their respective costs.

32. Pending application(s), if any, stands disposed of.

Ankit Gyan(Assisted by : Neha Sharma, LCRA)

Appeals dismissed.