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

Citation: [2022] 13 S.C.R. 569 · Decided: 09-02-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed

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Judgment (excerpt)

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   [2022] 13 S.C.R. 569
B. R. PATIL
v.
TULSA Y. SAWKAR & ORS.
(Civil Appeal No(s). 2652-2654 of 2013)
FEBRUARY 09, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Code of Civil Procedure, 1908 -Order II r.2,3 - Joinder of
causes of action – Order II r. 3 does not compel a plaintiff to join
two or more causes of action in a single suit - The failure to join
together all claims arising from a cause of action will be visited
with consequences proclaimed in Order II r. 2 - CPC permits a
plaintiff to join causes of action but it does not compel a plaintiff to
do so.
Code 
of 
Civil 
Procedure, 
1908 
- 
Partition 
-
Lawlookswithdisfavor upon properties being partitioned partially
- Theprinciplethattherecannotbeapartialpartition is not an absolute
one - It admits of exceptions.
Code of Civil Procedure, 1908 – Necessary Party - Non-
joining of necessary parties is fatal.
Possession –Adverse Possession – Ouster – Possession of a
co-owner however long it may be hardly by itself will constitute
ouster - In the case of co-owner, it is presumed that he possesses the
property on behalf of the entire body of co-owners - Even non-
participation of rent and profits by itself need not amount to ouster-
The proof of the ingredients of adverse possession are indispensable
even in a plea of ouster - There is the additional requirement in the
case of ouster that the elements of adverse possession must be shown
to have been made known to the co-owner - This is apparently for
the reason that the possession of a co-owner is treated as possession
of other co-owners – The very essence of adverse possession and
ouster lies in a party setting up a hostile title in himself - The
possession of a co-owner is ordinarily on his behalf and also on
behalf of the entire body of the co-owners - In the case of an ouster,
the co-owner must indeed have the hostile animus - He must assert
a title which is not referable to lawful title.
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
Partition – Right to sue for – Ancestral and Self acquired
property – The parties do not have any birth right in the self acquired
properties and they cannot bring a suit based on such a right – A
suit for partition in regard to ancestral property/joint family property
would be premised on birth right.
Code of Civil Procedure, 1908 – Properties not in the
possession of co-sharers/coparceners being omitted cannot result
in a suit for the partition of the properties which are in their
possession being rejected.
Dismissing the appeals, the Court
HELD : 1.The grand parent of the parties was one ‘MP’.
He had two sons. There is no dispute regarding this. In the plaint,
it is true that that the plaintiffs havestated that ‘MP’ had another
son who remained an agriculturist. It is the further plea of the
plaintiffs that ‘MP’ had a bit of landed property which was sufficient
to eke out his livelihood. He left the landed property to the other
son who remained an agriculturist. It is the further case and which
is not open to dispute also that ‘R’ was got educated and he
obtained a Degree of Law and started practicing and later ‘R’
became a Public Prosecutor and he resigned the post and he
entered into politics. He became a successful politician and
became a Cabinet Minister holding various portfolios. These facts
are, in fact, not in dispute. The only point to be considered under
the first head of complaint of the appellant is about the non-
inclusion of the property of which there is a faint reference in the
plaint, namely, that ‘MP’ had a bit of landed property and it was
left to the other son. The appellant would lay store by the
deposition given by one of the witnesses for the plaintiffs, namely,
PW-3.The Court is of the view that the interest of justice lies in
rejecting the appellant’s contention. The appellant has not been
able to clearly establish the exact extent or identity of the
property available by way of ancestral property. Despite claiming
to having documents relating to the properties and admitting to
having no difficulty to produce them, he does not produce them.
He is unable to even give the boundaries. It is obvious that he
does not claim to be in possession of the said properties even if
it be as a co-owner on the basis that it isancestral property. His
evidence discloses that in reality and on the ground these
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properties could not be said to be actually available for the parties
to the present suit to lay claims over th

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