JUDGEMENT SUMMARY:
B.R. Patil vs Tulsa Y. Sawkar
DATE OF JUDGEMENT:
9th February 2022
JUDGES:
K.M. Joseph, J.
H. Roy, J.
PARTIES:
B.R. Patil (Appellant)
Tulsya Y. Sawkar And Ors. (Respondent)
SUBJECT
The Order 1 Rule 3 read with Order 2 Rule 3 of CPC together permit a plaintiff to join causes of action. The consequences of failing to join all claims arising from a single cause of action can be fatal to a plaintiff.The Supreme Court hold that the Order II Rule 3 of CPC does not compel a plaintiff to join two or more causes of action in a single suit.
AN OVERVIEW
- The legal heirs of the deceased R. M. Patil were entitled to the suit schedule properties which were acquired by him during his lifetime. R. M. Patil along with his father and brother had owned Joint Family Properties which had yielded sufficient income that were utilized to purchase the plaint schedule properties.
- In the plaint, the pleadings had stated that the Suit Schedule properties were self-acquired properties and originally belonged to Late R.M. Patil. The Appellant had made submissions admitting the same expressly.
- The suit of partition was filed in the Court of Additional City Civil Judgeat Bangalore seeking relief such as- partition of the possession and Perpetual injunction. The Trial Court had partly decreed the suit by granting theinjunction in favour of the sister-in-law of the Appellant.
- The impugned judgment was challenged by in three separate appeals before the High Court. The HC had allowed the appeal filed by the plaintiffs and the second defendant while dismissing the Appellant’s appeal.
- The Appellant had appealed before the Supreme Court where the first plaintiff was his sister, the second plaintiff was his sister-in-law and the second defendant was his brother.
IMPORTANT PROVISIONS
Constitution of India
- Article 136- Grants special leave to appeal by the Supreme Court
Code of Civil Procedure 1908
Order I Rule 3- Who may be joined as defendants is provided.
Order II Rule 3- Outlines the joinder of causes of action.
Hindu Succession Act 1956
Section 8- Outline the general rules of succession in the case of males
ISSUES
The issues before the Apex Court were:
- Whether suit would fail on the ground of non-inclusion of certain properties and non-joinder of necessary parties?
- Whether the ouster could be acquired by the appellant?
- Whether self-acquired properties could be excluded from the plaint schedule properties?
ANALYSIS OF THE JUDGMENT
1. The Law did not favour properties being partitioned partially. However, there was no absolute principle that the partial partition would not be possible. In the 17th Edition of Maynes Treatise on Hindu Law & Usage,it was stated that every suit for a partition were required to be embrace all joint properties. It provided that the suit for partial partition would lie when:
a. The portion which was omitted was not in the possession of coparceners and
b. That portion might have been deemed to be not really available for partition.
2. The appellant was not able to establish the exact extentof the property available to the heirs by way of ancestral property. He had claimed to have possessed the documents relating to the properties and even admitted that he had no difficulty to produce them. He further was unable to give the boundaries.
3. It was evident that the Appellant was not in the possession of the said properties which were omitted. It was already settled law that the properties which were not in the possession of the coparceners could be omitted from the suit for the partition of the properties.
4. In Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Another, it was held that when Order I Rule 3 of CPC is read with Order 2 Rule 3 of CPC, the question of joinder of parties included the joinder of causes of action even. It could be inferred that the CPC permitted the plaintiff to join the causes of action. However, Order II Rule 3 did not compel the plaintiff to do so.
5. The Appellant pointed that he exclusively possessed the house in the Plaint Schedule Property and thus, had acquired title by ouster at any rate in regard to that property. In P. Lakshmi Reddy v. L. Lakshmi Reddy,1957it was held that there must be evidence of open assertion of hostile title between the co-heirs along with the with exclusive possession and enjoyment by one of them to the knowledge of the other for the constitution of ouster. It was further held that the burden of making out ouster was on the person who had been claiming to displace the lawful title of a co-heir by his adverse possession.
6. From the res judicata judgement, it could be concluded that the for establishing the plea of ouster in the case of co-heir, following things are necessary:
a. Hostile animus would have been declared
b. Long and uninterrupted possession of the person pleading ouster
c. The pleader would have exercised the right of exclusive ownership openly and with the knowledge of other co-heirs.
7. The Appellant had been residing in the house even prior to his father’s death in 1977. Theplaintiff No. 1 had demanded the partition of the suit schedule properties in 1991 and upon the denial of the appellant, she had kept quite till the filing a suit. There was a considerable delay on the part of plaintiff No. 1 for filing the suit. Therefore, the appellant had taken up the plea that the first plaintiff had no right to demand the partition.
8. The findings of Trial Court had pointed that the appellant was in possession of only the Ground Floor. Further, the second plaintiff was found to be in possession of the First Floor. Therefore, there was absence of setting up a hostile title in himself on the part of the Appellant
9. There was no dispute pertaining to the title of the first plaintiff as one of the co-heirs amongst other co-heirs expect the Appellant. The Appellant had claimedthat the first plaintiff was given property including jewellery during her marriage and therefore she did not have a right as a co-heir. However, he had failed to proclaim himself as the absolute owner of the property.
10. Two properties which were included in the plaint schedule properties were evidently self-acquired by the Second Defendant. The second defendant was a coparcener and the joint family of R. M. Patil and his sons included him as well. However, nowhere in law it was stated that the co-heirs could not acquire their own independent or separate properties. Therefore, these properties could be excluded from the list.
CONCLUSION
The Apex Court held the appeal had no merit and dismissed it. The parties were left to bear their own respective costs. The Court had the following findings:
a) The properties which are not in possession of the heir and are unavailable for partition can be excluded from the suit of the partition
b) The non-joinder of necessary parties will not imperil the suit filed by the plaintiffs.
c) The ouster can be acquired if the co-heir has declared hostile animus, is in long and uninterrupted possession of the property and the exclusive ownership right is exercised openly with the knowledge of the other co-heirs.
d) The co-owner of a joint family property canacquire independent or separate properties.
The impugned judgement of the SC was held to be equitable.
