B. R. PATILversusTULSA Y. SAWKAR & ORS.

                          [2022] 13 S.C.R. 569                             569


                             B. R. PATIL                                   A
                                   v.
                   TULSA Y. SAWKAR & ORS.
               (Civil Appeal No(s). 2652-2654 of 2013)
                        FEBRUARY 09, 2022                                  B
        [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
                                                                           C
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 -
                                                                           D
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.
                                                                           E
       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       F
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            G
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.
                                                                           H
                                  569
570            SUPREME COURT REPORTS                        [2022] 13 S.C.R.


A            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.
B           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
C             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
D     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
E     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
F     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
G     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
H     evidence discloses that in reality and on the ground these
           B. R. PATIL v. TULSA Y. SAWKAR & ORS.                           571


properties could not be said to be actually available for the parties      A
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       B
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       C
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                D
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]                               E

       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          F
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             G
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

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572            SUPREME COURT REPORTS                     [2022] 13 S.C.R.


A     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-B-
      E]
B
            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
C     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
D     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]
E           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.
F           Mohammad Ali (dead) by Lrs. v. JagadishKalita and
            Others (2004) 1 SCC 271:[2003] 4 Suppl. SCR 325 –
            referred to.
                            Case Law Reference
      [1999] 1 SCR 1097              referred to             Para 16
G
      [1957] SCR 195                 referred to             Para 21
      [2003] 4 Suppl. SCR 325        referred to             Para 23
      [1989] 2 Suppl. SCR 519        relied on               Para 24
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2652-
H     2654 of 2013
            B. R. PATIL v. TULSA Y. SAWKAR & ORS.                                 573


      From the Judgment and Order dated 14.09.2012 of the High Court              A
of 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.
                                                                                  B
       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 of
Additional City Civil Judge at Bangalore is the appellant before us. The
said suit was filed by his sister as the first plaintiff and his sister- in-law   C
as the second plaintiff. The reliefs sought read as follows: -
       “(1)(a) For partition and separate possession of their 1/5th share
       each, in the suit schedule items 1 to 3 properties by metes and
       bounds and 1/5th share each, in the sale proceeds of items 4 & 5
       of the suit schedule properties, after their sale.                         D
       (b) a direction to the 1st defendant to render accounts of the rentals
       received by him, from item no. 1 and 3 of the suit schedule
       properties from 1983 onwards till the date of suit and for partition
       of 1/5th share of each plaintiff, in the said rentals.
       (c) For an enquiry into the rentals to be received by the 1st defendant    E
       from suit items 1 & 3 during the pendency of the suit and for
       partition of 1/5th share of each plaintiff, and
       (d) for mesne profit from the date of preliminary decree, till date
       of delivery of the 1/5th share of each plaintiff, and
                                                                                  F
       (e) for such other relief or reliefs as this Hon’ble Court deems fit
       to grant to the plaintiffs in the facts and circumstances of the
       case.
       (2) For Perpetual injunction restraining the 1st defendant from
       interfering with the peaceful possession and enjoyment of 1st floor        G
       of item no. 3 of the suit schedule property and to park the car in
       the premises of the item No. 3 by the 2nd plaintiff.”
      2. The Trial Court partly decreed the suit. It granted prohibitory
injunction in favour of the second plaintiff.
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574            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A                                           ORDER
            “The suit is decreed in part.
                   The claim of plaintiff for partition and separate possession
            of their alleged 1/5th share each and other consequential reliefs as
            prayed in Paras (b) to (d) is dismissed.
B
                  The reliefs claimed by defendant No. 1, defendant No. 2
            and defendant No. 3 are disallowed.
                  The claim of plaintiff No. 2 for the relief of injunction is
            granted in the following terms:
C                  Defendant No. 1, his men, agents etc., are directed not to
            interfere with peaceful possession and enjoyment of 1st floor of
            item No. 3 of the suit schedule by plaintiff no. 2 and her right to
            park the car in the premises of Item No. 3 till the division in the
            estate of the joint family takes place by metes and bounds, in
D           accordance with law.
                   In the circumstances of the case, parties are left to bear
            their own costs.
                   Dictated to the Judgment Writer, transcribed by her,
            corrected and then pronounced by me in open court this the 9th
E           day of July, 2005.
                                        (I.S. Antin)
                               XXII Addl. City Civil Judge,
                                       Bangalore”
F            3. Feeling aggrieved by the aforesaid judgment, three separate
      appeals have been generated. RFA No.1503/2005 was filed by the
      appellant. RFA No.1296/2005 was filed by the plaintiffs whereas RFA
      No.1369/2005 was filed by the second defendant in the suit. By the
      impugned judgment, the High Court has allowed the appeal filed by the
G     plaintiffs and the second defendant and dismissed the appeal filed by the
      first defendant. Resultantly, the High Court has decreed the suit in the
      following manner: -
            “33. Accordingly, the judgment dated 08.07.2005 passed by the
            XXII Addl. City Civil Judge, Bangalore in O.S. No.7944/2003 in
            respect of partition of suit schedule properties, is set aside. The
H
B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                        575


      appeals are allowed insofar as partition of item Nos. 1 to 4 of           A
      plaint schedule properties. The suit for partition of item No.5 of
      the plaint schedule property is dismissed.
      34. The plaintiff Nos.1 and 2 and defendant Nos.1 to 3 who are
      legal heirs of the deceased R. M. Patil are entitled for 1/5th share
      each in item Nos.1 to 4 of the suit schedule properties which             B
      were acquired by R.M.Patil during his lifetime. Insofar as item
      No.5 i.e., library books purchased and maintained by late R. M.
      Patil during his lifetime is concerned, the plaintiffs have averred
      in the plaint that the value of the library books is about Rs.1 lakh
      and it was purchased about 30 years back, but no documentary
      evidence are produced to show the total value of the library/law          C
      books, therefore, the plaintiffs are in no way concerned with the
      library books. Therefore item No.5 is treated as valueless. Since
      the first defendant was working as junior under his father till his
      death i.e., 1975 and is continuing his legal profession, he is entitled
      to retain the library books with him.                                     D
      Draw the decree accordingly. No order as to costs.”
       4. We heard Mr. Salim A. Inamdar, learned counsel appearing for
the appellant and we also heard Mr. S. N. Bhat, learned senior counsel
who appears on behalf of the plaintiffs, second defendant and also the
legal representatives of the deceased third defendant.                          E

     5. Learned counsel for the appellant would address the following
submissions before us: -
             He would submit that this is a case where the suit is liable
      to be dismissed on the ground that there was non-joinder of               F
      necessary parties. It is equally bad for the reason that the plaintiffs
      have not scheduled all the properties which should have been
      included for the purpose of partition. He would further submit
      that the Plaint Schedule Properties were actually purchased out
      of the Joint Family funds. These three submissions find their
      foundation with the following facts. It is pointed out that admittedly    G
      one Shri Marigowda Patil, had two sons, namely, Shri R. M.
      Patil and Shri Ningana Gowda Patil. Shri R. M. Patil had three
      sons 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.
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576      SUPREME COURT REPORTS                           [2022] 13 S.C.R.


A     Patil. The first defendant is another son. So is the second
      defendant. There were Joint Family Properties belonging to the
      joint family which consisted of the grandfather of the appellant
      Shri Marigowda Patil and his two sons. Those properties yielded
      sufficient income and it is utilizing the same that the plaint schedule
      properties were purchased. That apart, those properties should
B
      have been reflected in the plaint schedule and the entire properties
      should have been made available for the Court to make a decree
      which is valid in law. Necessarily the inevitable consequence is
      that the suit would fail for non-joinder of the brother of the
      appellant’s father (Shri R.M. Patil) who was the other co-owner/
C     coparcener who is conspicuous on the party array by his absence.
      Next, the learned counsel would point out that at any rate the
      appellant is entitled to Plaint Schedule Property Item No.3. He
      points it out to be a house. He would contend that he is in the
      exclusive possession of the house. He relies on evidence in the
      form of Notice issued in June, 1991 and he submits that it decisively
D
      proves that the appellant has acquired title by ouster at any rate in
      regard to item No.3. He has been in exclusive possession of the
      said house. He does not have any other house. Apart from being
      illegal it is inequitable to throw the appellant out on the street. He
      would point out that all the other siblings have houses of their
E     own. Next, he would point out that the appellant in his written
      statement has included certain properties in the schedule, which
      stand in the name of family members which he claimed were
      purchased with funds of the joint family. Though the written
      statement alludes to properties being properties which stood in
      the name of the husbands of appellant’s sisters what he presses
F
      before us is his claim in regard to item Nos. 2 and 3 relating to
      properties standing in the name of defendant No.2. He would
      submit that the Trial Court has correctly found that these properties
      must be treated as properties of the coparcenary. This was part
      of the reasoning which impelled the Court to dismiss the suit insofar
G     as it related to the relief of partition. He took us to the finding of
      the High Court over turning the said finding and he would complain
      that the findings are insupportable with reference to the evidence
      on record. He would point out that there was evidence as to the
      extent of ancestral property which was noted by the Trial Court
      but no challenge to the same was laid in the appeals filed by the
H
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                       577


      respondents. He would finally conclude by pointing out that both          A
      in law and equity this Court may pass an Order which reaches
      justice to the appellant and an equitable allocation of the properties
      at any rate for which this Court is adequately equipped under
      Article 142 of the Constitution of India.
        6. Per contra, Mr. S. N. Bhat, learned senior counsel would contend     B
that as far as the alleged Joint Family Properties which existed and
adverted to by the learned counsel for the appellant is concerned, the
cause of action for the present suit is the opening up of the succession
upon the death of the father of the appellant, Shri R. M. Patil on
19.10.1977. The suit in other words is instituted only for the purpose of
claiming and establishing the rights over the separate self acquired            C
properties of Shri R. M. Patil. He would also take us through the pleadings
and evidence to contend that there is no basis in the complaint that Joint
Family Properties had being excluded. Therefore, he contends that on
that basis there is no occasion also to implead the other branch referred
to by the appellant in the suit. He would contend that all that is required     D
to be found is whether the plaint schedule properties are the self acquired
properties of Shri R. M. Patil. As far as this question is concerned, the
pleadings and evidence on record clearly warranted the conclusion arrived
at and the relief which has been granted by the impugned judgment. In
regard to ouster, he would first of all point out that the pleading of the
first appellant itself is one of partial ouster, which in law is incapable of   E
extinguishing the title which the principle of ouster seeks to allow and
achieve. He would further contend that actually the building in question
consists of two floors. The appellant is only in possession of the Ground
Floor. He harnesses the finding of the Trial Court itself that the second
plaintiff was in possession of the First Floor and he draws our attention       F
to the decree passed by the Trial Court itself which is one of prohibitory
injunction in favour of the second plaintiff in regard to the First Floor. He
further contends that the very prayer of the appellant in his written
statement was that he be declared entitled to 1/4th share in the Plaint
Schedule Properties which takes in item No.3 which means that he is
admitting title of the co-owners except the first plaintiff which is            G
impermissible in law. Regarding the contention of the learned counsel
for the appellant that non-impleadment of the other branch, may prejudice
public interest, he would submit that it is a theoretical proposition and it
has no application in the facts of this case. The properties in question
which are alleged to exist have not been established in the evidence and        H
578             SUPREME COURT REPORTS                            [2022] 13 S.C.R.


A     it may not lie in the mouth of the appellant to voice this complaint. As
      regards item Nos. 2 and 3, standing in the name of the second defendant
      which the appellant claimed should also be partitioned, he would point
      out that the finding of the Trial Court in favour of the appellant stands
      correctly overturned by the High Court even though the findings could
      have been better couched. He points out that the second defendant was
B
      indeed employed and had sufficient funds and the Trial Court was mainly
      guided by Exhibit D-75 which having regard to its date (17.08.1982) and
      the sum involved Rs.11,330/- and the circumstances which led to it would
      be sufficient to rob it of the value which was otherwise attached to it by
      the Trial Court.
C            FINDINGS
          1) WHETHER SUIT MUST FAIL ON ACCOUNT OF
      NON-INCLUSION OF CERTAIN PROPERTIES AND NON-
      JOINDER?
D            7. We have already noticed the genealogy of the parties in the
      manner, we have referred to above. Undoubtedly, the grand parent of
      the parties was one Shri Marigowda Patil. He had two sons. There is no
      dispute regarding this. In the plaint, it is true that that the plaintiffs have,
      no doubt, stated that Shri Marigowda Patil had another son who remained
      an agriculturist. It is the further plea of the plaintiffs that Shri Marigowda
E     Patil 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 Shri R. M. Patil was got educated and he obtained a Degree of
      Law and started practicing and later Shri R. M. Patil became a Public
F     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 Shri Marigowda Patil had a bit of landed
G     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. He has indeed stated as follows: -
             “4. I do not know the extent and also the Survey Number of the
             land given by R. M. Patil to his elder brother. The above said land
H            is black soil land and they used to grow cotton, jawar and wheat.
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                         579


       I do not know how much income they were getting from the said              A
       agricultural property. R. M. Patil informed me about the land given
       to his brother. I was visiting R.M. Patil frequently as I was residing
       in Dharwad. Even after, he settled down at Bangalore also I used
       to visit his house frequently. I visited him for about 20 times when
       he was in Bangalore. I have not seen the deed of partition entered
                                                                                  B
       into between R.M.Patil and his brother.”
      8. The appellant, no doubt, in his evidence has crystallized the
extent in somewhat greater detail by stating that the property involved,
which was Joint Family Property, was about 46 acres of Agricultural
Land.
                                                                                  C
      9. It is not in dispute that the land which is alluded to is Agricultural
Land. It is highly relevant to notice, however, what the appellant has
deposed in this regard: -
       “5. Since 33 years I have been practicing as an Advocate. My
       Advocate prepared the written statement on my instructions, it is
                                                                                  D
       true that in my written statement have claimed that myself is a
       kartha of family and looking after the plaint schedule property as
       Kartha of the family. It is true that during the lifetime of my father,
       my father was looking after the plaint schedule property. It is true
       that I have not produced any document in respect of the property
       referred to at para-2 of my affidavit. I am having the documents           E
       pertains to the property referred to in my affidavit. I have got RR
       extracts, Khata extracts of those lands standing in the name of
       Ninganagowda Patil. There is no difficulty for me to produce the
       said documents before the Court. There are 12 Sy. Nos. The total
       extent of said Sy. Nos. is 44 acres. I cannot give the boundaries
       of the above property. It is true that I have claimed 1/4th share in       F
       the plaint schedule properties. I have not sought for any share in
       the properties mentioned in my affidavit evidence.”
                                                        (Emphasis supplied)
       10. This is the state of the pleading and evidence in support of the
                                                                                  G
existence of the property other than what has been scheduled by the
plaintiffs and for which partition is sought. It is true that the law looks
with disfavor upon properties being partitioned partially. The principle
that there cannot be a partial partition is not an absolute one. It admits of
exceptions. In Mayne’s ‘Treatise on Hindu Law & Usage’ 17th Edition,
Paragraph 487, reads as follows:                                                  H
580             SUPREME COURT REPORTS                           [2022] 13 S.C.R.


A            “487. Partition suit should embrace all property – Every suit for a
             partition should ordinarily embrace all joint properties. But this is
             not an inelastic rule which admits circumstances of a particular
             case or the interests of justice so require. Such a suit, however,
             may be confined to a division of property which is available at the
             time for an actual division and not merely for a division of status.
B
             Ordinarily a suit for partial partition does not lie. But, a suit for
             partial partition will lie when the portion omitted is not in the
             possession of coparceners and may consequently be deemed not
             to be really available for partition, as for instance, where part of
             the family property is in in the possession of a mortgagee or lessee,
C            or is an impartible Zamindari, or held jointly with strangers to the
             family who have no interest in the family partition. So also, partial
             partition by suit is allowed where different portions of property lie
             in different jurisdictions, or are out of British India. When an item
             of property is not admitted by all the parties to the suit to be their
             joint property and it is contended by some of them that it belongs
D
             to an outsider, then a suit for partition of joint property excluding
             such item does not become legally incompetent of any rule against
             partial partition.”
             11. In the facts of this case having noticed the state of the pleadings
      and the evidence, we are of the view that the interest of justice lies in
E     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
F     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 is ancestral 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
G     of the properties which are in their possession being rejected.
            12. The case that is set up by the plaintiffs and which is sought to
      be drawn upon by the appellant is that the grandfather of the appellant
      had two sons, including his father and since there was this extent of
      property which is spoken by and since that is not included, it would be
H
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                        581


contrary to public interest also to deprive the other sharer in the joint        A
family, namely, the brother of the appellant’s father an opportunity to
appear in the suit and establish that the plaint schedule properties were
acquired with the help of joint family funds in which they also had a
share. We must notice that while it is true, there is no document produced
by which it can be established that there was a partition by which the
                                                                                 B
properties 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 an
arrangement between the parties by which the appellant’s grandfather
allotted the property to his other son (appellant’s uncle). DW3, who is
the 2nd defendant, speaks of a relinquishment by his father.
       13. There is the uneducated brother of appellant’s father who             C
was into agriculture who was given the property in question and the
appellant’s father went on to become a successful advocate and pursued
with success also a career in politics. It may have so happened that the
said property which is targeted by the appellant may be property in which
Sh. R.M. Patil has abandoned his rights. We would not wish to go further         D
into this matter, noticing the aspect of the matter already discussed.
Therefore, this appears to be a case where finally before the Court,
there is dearth of material to establish both the extent and the identity of
the so-called joint family property which is not included in the plaint.
Interestingly, the other branch has not come forward with any complaint
despite the fact that this is a litigation of the year which commenced in        E
the year 2003. No doubt, they have not been made parties and we need
not make any observation in this regard. If the finding that the plaint
schedule properties are the separate properties of R.M. Patil is
invulnerable that would conclusively rule out the need to implead the
appellant’s uncle or his successor in interest. Suffice it to say in the facts   F
of this case, we do not think that the appellant should be permitted to
persuade us to non-suit the plaintiffs on this ground.
       14. Yet another aspect which we cannot overlook is that the
plaintiffs have proceeded to institute the suit on a particular cause of
action. As pointed out by Mr. S. N. Bhat, learned senior counsel, the            G
appellant could not have brought the present suit till the year, 1977 when
Sh. R. M. Patil was alive. This is for the reason that the cause of action
for the present suit is based on the rights of the plaintiff to the separate
and self acquired properties of Sh. R. M. Patil. The parties do not have
any birth right in the said properties and they could not have brought a
                                                                                 H
582               SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     suit based on such a right. The cause of action arose therefore only
      upon his death and on the basis of intestate succession plaintiffs have
      brought the present suit. A 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 of
B     the Code of Civil Procedure, 1908 reads as follows:
               “3. JOINDER OF CAUSES OF ACTION. -
               (1) Save as otherwise provided, a plaintiff may unite in the same
               suit several causes of action against the same defendant, or the
               same defendants jointly; and any plaintiffs having causes of action
C              in which they are jointly interested against the same defendant or
               the same defendants jointly may unite such causes of action in
               the same suit.
               (2) Where causes of action are united, the jurisdiction of the Court
               as regards the suit shall depend on the amount or value of the
D              aggregate subject-mattersat the date of instituting the suit.”
             16. Order I Rule 3 speaks about the persons who may be made
      parties. Interpreting these rules, this Court in Iswar Bhai C. Patel alias
      Bachu Bhai Patel v. Harihar Behera and Another1 held inter alia as
      follows:
E
               “14. These two provisions, namely, Order 1 Rule 3 and Order 2
               Rule 3 if read together indicate that the question of joinder of
               parties also involves the joinder of causes of action. The simple
               principle is that a person is made a party in a suit because there is
               a cause of action against him and when causes of action are
F              joined, the parties are also joined.”
             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
G     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
      1
          AIR 1999 SC 1341
H
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                       583


power of the court as also the right of the parties to object are to be dealt   A
with in accordance with law which is well settled.
       17. The Code of Civil Procedure indeed permits a plaintiff to join
causes of action but it does not compel a plaintiff to do so. The
consequences of not joining all claims arising from a cause of action
may be fatal to a plaintiff and we are not in this case to predicate for        B
what would happen in a future litigation. That would at any rate not
advance the case of the appellant. Hence for all these reasons, we are
of the view that contention of the appellant, must fail.
      18. We have no quarrel with the proposition that the non-joining
of necessary parties is fatal but in the facts of this case, on the cause of    C
action which is projected in the plaint and the schedule of properties
which has been made by the plaintiffs, we 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.
    2. WHETHER PLAINT SCHEDULE PROPERTIES ARE                                   D
SEPARATE PROPERTIES OF SHRI. R.M. PATIL?
        19. The next question is whether the plaint schedule properties
must 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:-                           E
              “4. The Suit Schedule properties at item no.1 house property
       at Dharwar, item no.2 a site situated at Dharwar, item No.3 a
       house property consisting of ground and first floor situated at Palace
       Orchards at Bangalore, Item No.4, the fiat car and item No.5 the
       library worth rs.1 Lakh, were acquired by him (herein after referred     F
       to as “Suit Schedule Properties” for brevity). They are self
       acquired properties, originally belonged to Late R.M. Patil S/o
       Marigowda.”
      The answer to this pleading is found in paragraph 6 of the appellant’s
Written Statement, which reads as follows: -
                                                                                G
             “6. This defendant submits that the allegations made in
       paragraphs 2 to 8 of the plaint is admitted.”
        20. Thus, the specific allegation that the plaint schedule properties
were self-acquired properties of R.M. Patil, was not only not denied but
it is admitted expressly. If that were not enough the defendant when it         H
584               SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     came to adducing evidence has fortified the plaintiffs in their case that
      the plaint schedule properties were separate properties and he deposed
      as follows: -
             “6. It is true that Ninganagowda and his children are not concerned
             to the suit schedule property. It is true that suit schedule properties
B            are the self acquired properties of R. M. Patil. The title deeds in
             respect of the suit schedule properties stand in the name of
             R.M.Patil. It is true that after the demise of my father, I gave an
             affidavit before the revenue authorities seeking chance of entries
             in the name of myself, my brothers, my mother and my sisters. It
             is true that the document which I am seeking now is the certified
C            copy of the letter addresses by me to the Revenue Officer,
             Dharwad. The same is marked as Ex. P45. It is true that suit
             schedule Item No. 3 was allotted to my father by the CITB and
             my father paid the sale price towards the same. It is true that by
             obtaining loan my father constructed the house in the above said
D            property. It is not true to suggest that my father discharged the
             above said debt out of joint earnings. We discharged the said debt
             in the year 1975…”
             The learned counsel for the appellant made an attempt to persuade
      us to hold that the sentence that the properties were the self-acquired
      properties of his father may be viewed in context and isolated piece of
E     deposition should not overwhelm a large body of deposition which exists
      otherwise. His deposition that Ningengowda and his children are not
      concerned to the suit property is fatal to the appellant case that their
      absence in the party array is fatal to the plaintiffs claim. It further
      establishes beyond doubt that the next sentence is an admission which
F     cannot be said to be a mistake or capable of being explained away. We
      would not think that we should permit the appellant to do that. This is for
      the reason that the appellant had clearly admitted that the plaint schedule
      properties were the self-acquired properties which belonged to Sh. R.M.
      Patil. The appellant, admittedly, is an Advocate.
             OUSTER
G
             21. The next contention raised is one of ouster. In P. Lakshmi
      Reddy v. L. Lakshmi Reddy2, it is held inter alia as follows: -
             “4. Now, the ordinary classical requirement of adverse possession
             is that it should be nec vi nec clam nec precario. (See Secretary
      2
H         AIR 1957 SC 314
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                        585


       of State for India v. Debendra Lal Khan, 61 Ind App 78 at P 82            A
       (AIR 1934 PC 23 at p.25) (A). The possession required must be
       adequate in continuity, in publicity and in extent to show that it is
       possession adverse to the competitor. (See Radhamoni Debi v.
       Collector of Khulna, 27 Ind App 136 at p.140 (PC)(B). But it is
       well settled that in order to establish adverse possession of one
       co-heir as against another it is not enough to show that one out of       B
       them is in sole possession and enjoyment of the profits, of the
       properties. Ouster of the non-possessing co-heir by the co-heir in
       possession who claims his possession to be adverse, should be
       made out. The possession of one co-heir is considered, in law, as
       possession of all the co-heirs. When one co-heir is found to be in        C
       possession of the properties it is presumed to be on the basis of
       joint title. The co-heir in possession of the properties it is presumed
       to be on the basis of joint title. The co-heir in possession cannot
       render his possession adverse to the other co-heir not in possession
       merely by any secret hostile animus on his own part derogation of
       the other co-heir’s title. (See Corea V. Appuhamy, 1912 AC 230            D
       (C). It is a settled rule of law that as between co-heirs there must
       be evidence of open assertion of hostile title, coupled with exclusive
       possession and enjoyment by one of them to the knowledge of the
       other so as to constitute ouster. This does not necessarily mean
       that there must be an express demand by one and denial by the             E
       other. There are cases which have held that adverse possession
       and ouster can be inferred when one co-heir takes and maintains
       notorious exclusive possession in assertion of hostile title and
       continues in such possession for a very considerable time and the
       excluded heir takes no steps to vindicate his title. Whether that
       line of cases is right or wrong we need not pause to consider. It is      F
       sufficient to notice that the Privy Council in N. Varada Pillai v.
       Jeevarathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparently
       with approval a passage from Culley v. Deod Taylerson, (1840) 3
       P & D 539; 52 RR 566 (E) which indicates that such a situation
       may well lead to an inference of ouster “if other circumstances
       concur”. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F) It            G
       may be further mentioned that it is well-settled that the burden of
       making out ouster is one the person claiming to displace the lawful
       title of a co-heir by his adverse possession.”
       22. In regard to ouster, we may also notice the following decision
of this Court.                                                                   H
586                SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A          23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita
      and Others3 the court inter alia held as follows:
               “31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] this
               Court upon referring to a large number of decisions observed:
               (SCC p. 505, paras 27-28)
B                  “27. … It will be seen that in order that the possession of co-
                   owner may be adverse to others, it is necessary that there
                   should be ouster or something equivalent to it. This was also
                   the observation of the Supreme Court in P. Lakshmi Reddy
                   case [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC
C                  314] which has since been followed in Mohd.
                   Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC
                   345].
                   28. ‘Ouster’ does not mean actual driving out of the co-sharer
                   from the property. It will, however, not be complete unless it is
D                  coupled with all other ingredients required to constitute adverse
                   possession. Broadly speaking, three elements are necessary
                   for establishing the plea of ouster in the case of co-owner.
                   They are (i) declaration of hostile animus, (ii) long and
                   uninterrupted possession of the person pleading ouster, and
                   (iii) exercise of right of exclusive ownership openly and to the
E                  knowledge of other co-owner. Thus, a co-owner, can under
                   law, claim title by adverse possession against another co-owner
                   who can, of course, file appropriate suit including suit for joint
                   possession within time prescribed by law.”
               32. Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCC
F              62] it is stated: (SCC pp. 65-66, para 7)
                   “It is well settled that if a co-sharer is in possession of the
                   entire property, his possession cannot be deemed to be adverse
                   for other co-sharers unless there has been an ouster of other
                   co-sharers.”
G
               It has further been observed that: (SCC p. 66, para 9)
                   “9. In our view, the correct legal position is that possession of
                   a property belonging to several co-sharers by one co-sharer
                   shall be deemed that he possesses the property on behalf of
      3
H         (2004) 1 SCC 271
    B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                         587


             the other co-sharers unless there has been a clear ouster by            A
             denying the title of other co-sharers and mutation in the revenue
             records in the name of one co-sharer would not amount to
             ouster unless there is a clear declaration that title of the other
             co-sharers was denied.”
        24. The possession of a co-owner however long it may be, hardly              B
by itself, will constitute ouster. In the case 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                C
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.                  D
v. Sayed Ahmed Mohideen and Others4, 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.
                                                                                     E
       25. It is in this regard we may first notice the very nature of the
plea taken by the appellant. It reads as follows: -
         “10. It is submitted that the plaintiff No. 1 wrote a letter dated
         20.06.1991 demanding partition of the suit schedule properties.
         This defendant replied on 29th June 1991 denying her claim in un-           F
         ambiguous terms. Thereafter the plaintiff No. 1 kept quite till the
         filing of the present suit. Thereafter it is submitted that the plaintiff
         No. 1 is ousted from the joint-family and she has no right to demand
         the partition by bringing the present suit. It is submitted that being
         the position the plaintiff No. 1 is not in joint possession as alleged
         in the plaint. Therefore, the plaintiff No. 1 has to pay court fee          G
         under section 35(1) of the K.C.F. & S.V. Act, 1958. Similarly, the
         plaintiff No. 2 not being a member of the joint family she also has
         to pay the court fee under Section 35(1) of the K.C.F. & S.V.
         Act, 1958.”
4
    (1990) 1 SCC 345                                                                 H
588             SUPREME COURT REPORTS                             [2022] 13 S.C.R.


A             26. Therefore, the appellant has taken up the plea curiously that
      in view of the correspondence between the first plaintiff and the appellant
      and the delay with which the suit was filed, the first plaintiff had no right
      to demand the partition. This stand is further fortified by the prayer in
      the written statement that the appellant may be allotted 1/4th share which
      means appellant intended to exclude by the plea of ouster only the first
B
      plaintiff.
               We are afraid that a plea by which a co-owner seeks to only
      partially oust one co-owner as such does not commend itself to us. As
      pointed out by Mr. S. N. Bhat, learned senior counsel for the appellant
      the other co-owners do not dispute the title of the first plaintiff. The
C     appellant curiously does set up exclusive title in himself as he is claiming
      1/4th share thereby admitting the title of the other four siblings. The
      inconsistency and the dichotomy undermines the case of ouster as one
      of the body of co-owners cannot oust another whose title is not disputed
      by others and, what is more, their title is admitted by the co-owner, who
D     sets up a plea of ouster. In such circumstances, we do not think that
      even the plea is one which is tenable in law. That apart what is actually
      relied on is a letter which is the reply of the appellant to the letter sent by
      the Ist plaintiff. A letter dated 20.06.1991 is written by the first plaintiff to
      the appellant and the reply which is the sheet anchor of the appellant’s
      case 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 a share
             in the joint family properties. As your are very well aware, the
             three properties referred to in your notice all along formed part of
             the H.U.F. properties of our father and his elder brother Sri N.M.
F            Patil. You are very well aware of the nucleus for all the acquisitions
             of the property was the H.U.F. lands measuring 44 acres situated
             in vasan village in Nargud Taluk of Dharwar District. Though
             members of the family late acquired properties in their own names,
             our late father and uncle all along treated the properties as family
G            properties. There has been no severance of the H.U.F. status at
             any time. Even during the lifetime of our late father at no point of
             time did he chose to see severance and all along treated the three
             properties as part of the H.U.F. properties. You are very well
             aware of this factual position.

H
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                        589


       5. As you are aware, the family has spent large amounts to settle         A
       you in life and more particularly for your marriage and gifted you
       with jewels and other articles during the marriage to the best of
       the family’s abilities. Yet, in 1972 you, as was your want, demanded
       from our father, a car for your husband who was then only a
       Munsiff and yet had adopted ways of aristocracy which he could
                                                                                 B
       ill afford and our late father at great strain to himself gifted you
       with a Flat Car. Again, soon after our father’s death in 1977, you
       had the heart and face to demand a partition even when the family
       was still in mourning and our mother to satiate your greed again
       gave you her jewels to the exclusion of your only other sister Smt.
       Kasha, who is happily settled now in the United Stated. The               C
       demand for your so-called share which you had raised, through
       you are not entitled to the same, in the interest of peace, you were
       given all the jewels of our mother. As you are aware none of the
       brothers raised any objections to the same at any time and your
       agreed to accept the jewels in full and final settlement and not to
                                                                                 D
       repeat any further claims. It is strange that 14 years after our
       father’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. At
       any rate, you have been expressly excluded after the death of our
       father by the gift of mother’s jewels to you in satisfaction of your      E
       claims, though not sustainable.”
        27. The very essence of adverse possession and therefore 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           F
the hostile animus. He must assert a title which is not referable to lawful
title. Though the learned counsel for the appellant points out that this
possession started prior to 1977 in that the appellant was residing with
his father in item No.3 house from somewhere in the early seventies
and he continued to reside after his father’s death in the year 1977,            G
when Shri R.M. Patil died in the year 1977, his possession in 1977, was
clearly referable to lawful title as a co-owner entitled to inherit under
Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be
permitted to set up adverse possession or ouster in the year 1977. As far
as the letter which is addressed in 1991 and reply to the letter and suit
                                                                                 H
590            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     being beyond 12 years from the date of his reply, again we are of the
      view that he cannot be permitted to succeed for more reasons than one.
      In the first place, we have already noticed that this is a case where he is
      setting up ouster qua only one of the co-owners. Secondly, as it turns out
      contrary to the submission of the appellant, Mr. S. N. Bhat, learned
      senior counsel for the respondents points out the appellant was not in
B
      exclusive possession of the entire property. The appellant was in
      possession 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 and
      what is more a decree stands granted by the Trial Court in her favour. In
      fact, even the perusal of the letter relied upon by him in the year 1991
C     which we have referred to, does not as such reflect the assertion of the
      hostile title different from that of a co-owner. In substance, what is
      sought to be stated is that the first plaintiff who is his sister had been
      given property including jewellery and therefore she does not have a
      right. He does not proclaim himself to be the absolute owner of the
      property in his own right.
D
             28. We may additionally notice that the Trial Court has also framed
      an additional issue No.2, on ‘partial ouster’ as it were and answered the
      issue against the appellant. Therefore, this is a case where the appellant
      has against him concurrent findings of two Courts and in this appeal
      which is generated by special leave, we are not released from the
E     trammels of Article 136 in the matter of overturning such findings and
      we cannot certainly classify the findings in this regard in the totality of
      facts to be such a finding that warrants it being upset.
             EXCLUSION OF ITEMS 2 AND 3 SCHEDULED IN
             WRITTEN STATEMENT. ARE THEY SEPARATE
F            PROPERTIES OF THE SECOND DEFENDANT?
             29. The next question which is raised relates to the non-inclusion
      of the properties standing in the name of second defendant that is item
      Nos.2 and 3 in the schedule to the written statement of the appellant. As
      far as this contention is concerned, again we do not think that there is
      merit in the case of the appellant. Admittedly, the second defendant was
G
      educated and became an Engineer. He was employed. What really has
      weighed with the Trial Court is the fact that in view of departure from
      his obligations under a bond, a suit was filed and decreed against the
      second defendant who discharged his liability under D-75 dated
      17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2
H     scheduled in the written statement was purchased in the year 1976. The
 B. R. PATIL v. TULSA Y. SAWKAR & ORS. [K. M. JOSEPH, J.]                         591


property consists of a plot and it was allotted to the second defendant           A
for a 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 amounts
have been paid by him from his own resources by virtue of his
employment in India. It is not as if amount was paid in lumpsum. As
regards item No.3 in the written statement, it is a flat purchased in the
                                                                                  B
year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd
defendant has deposed of working abroad. The 2 nd defendant has spoken
about item No.3 being purchased for a sum of Rs.16 lakhs. Having
regard to his qualifications, we do not think that the appellant can fault
the reversal of the finding though it may be true that the High Court has
not dealt with it in a more elaborate manner. In this regard, we may              C
notice that the Trial Court has proceeded on the basis that since Sh.
R.M. Patil was earning as a successful lawyer and he became a
successful Politician as well, the second defendant being a coparcener,
item 2 and 3 should also be included. Even proceeding on the basis that
there was a joint family consisting of Sh. R. M. Patil and his sons, it is
                                                                                  D
not the law that a co-owner cannot acquire his own independent or
separate properties. In such circumstances, we find there is no merit in
this argument as well.
       IS THE IMPUGNED JUDGMENT INEQUITABLE?
       30. 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       E
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. We
must notice that the appeals are only maintained against the preliminary
decree by which shares have been declared. Therefore, we do not see
any reason for us to go into the question about the allotment of properties       F
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.
       31. Therefore, we see no merit in the appeals. The appeals will
stand dismissed. Parties are left to bear their respective costs.
                                                                                  G
       32. Pending application(s), if any, stands disposed of.

Ankit Gyan                                                   Appeals dismissed.
(Assisted by : Neha Sharma, LCRA)


                                                                                  H