LexNAGABHUSHANAMMAL (D) BY LRS. versus C. CHANDIKESWARAL!NGAM
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[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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B
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D
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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.
H
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20
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B
c
D
E
F
G
H
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.
21
CHANDlKESWARALINGAM
35% and the respondent 65% share. Let the suit property be
A
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
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