Nagabhushanammal (D) By Lrs. Vs. C. Chandikeswaralingam
Civil Law - Adverse Possession
Co-owners - Suit for Partition - Adverse Possession - 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.
The Code of Civil Procedure, 1908 - Section 11
Res Judicata' - It 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 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.
'Res Judicata' - 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 - It 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 - First appellate court recorded that 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 - High Court is not right in holding that suit barred by principle of res judicata.
Topic(s)-Res Judicata - Suit not hit by Res judicata