B. R. Patil vs Tulsa Y. Sawkar & Ors.

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 noninclusion 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 properties could not be said to be actually available for the parties to the present suit to lay claims over them. 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. [Paras 7 & 11][578-D-G; 580-E-G]

2.On the cause of action in this case, there is no warrant to complain against the non-impleadment of the appellant’s uncle or his successors in interest. We may also point out that Order II Rule 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 Rule 2. Order II Rule 3 permits the plaintiff to join together different causes of action. No doubt it is a different matter that if there is a misjoinder of causes of action, the power of the court as also the right of the parties to object are to be dealt with in accordance with law which is well settled.The Court has no quarrel with the proposition that the non-joining of necessary parties is fatal but in thefacts of this case, on the cause of action which is projected in the plaint and the schedule of properties which has been made by the plaintiffs, the Court would not think that the non-joinder of the uncle of the appellant or his legal representatives would imperil the suit filed by the plaintiffs.[Paras 16 & 18][582-F-H; 583-C-D]

3.The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In thecase of a 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 undoubtedly indispensable even in a plea of ouster. However, 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. While it may be true that it may not be necessary to actually drive out the co-owner from the property as noticed in Mohd. Zainulabudeen (since deceased) by lrs. v. Sayed Ahmed Mohideen and Others, mere continuance in the possession of a co-owner does not suffice to set up a plea of ouster. The possession of the co-owner will also be referable to lawful title. The possession of the appellant even of the ground floor of the building on the land in question, was entirely in accord with his right as a co-owner.[Para 24][587-BE]

4. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior Citizen and aged about

80 years and while the other siblings have their own properties and only the appellant would be most adversely affected and he will be on the streets. The Court must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, the Court does not see any reason for us to go into the question about the allotment of properties which is a 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 appellant to raise such contentions as are available in this regard.Therefore, the Court sees no merit in the appeals. The appeals will stand dismissed.[Paras 30 & 31][591-E-G] Mohd. Zainulabudeen (since deceased) by Lrs. v. Sayed Ahmed Mohideen and Others (1990) 1 SCC 345 : [1989]

2 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. Lakshmi Reddy AIR 1957 SC 314 : [ 1957] SCR 195; Md.

Mohammad Ali (dead) by Lrs. v. JagadishKalita and Others (2004) 1 SCC 271:[2003] 4 Suppl. SCR 325 – referred to.