JUDGMENT
K. Venkataswami, J.
1. The plaintiff who was a minor when O.S. No. 24 of 1979 was filed and has since become a major, and has lost the case in both the Courts below, is the appellant before me.
2. The said suit was filed on the file of the court of the Subordinate Judge, Ramanathapuram at Madurai for partition and separate possession of his 1/12th share in A Schedule properties excluding the properties described in B Schedule, and for mesne profits from May, 1973, and costs.
3. I may at once state that the facts are not in controversy. The undisputed facts are as follows: – The plaint A schedule properties originally belonged to the joint family consisting of Muthia Raja, his sons and grandsons. Muthia Raja died in or about 1945. Defendants 1 to 6 are the sons of deceased Muthia Raja. Defendants 7, 8 and 14 are the sons of the 1st defendant. Defendants 9 and 10 are the sons of the 2nd defendant. 11th defendant is the son of the 3rd defendant. Defendants 12 and 13 are the sons of the 4th defendant. The plaintiff is the son of the 5th defendant. The 15th defendant is the court auction purchaser of the joint family properties. Defendants 16 and 17 are alienees of certain items from the 15th defendant. Defendants 2 and 3, on executing a promissory note on 1st August, 1946, borrowed a sum of Rs. 1,000 from one Ammani Ammal. The said Ammani Ammal instituted O.S. No. 188 of 1951, on the file of the court of the District Munsif, Srivilliputtur for recovery of the amount due to her under the said promissory note against defendants 2 and 3 in the present suit and obtained a decree. In execution of that decree, she brought all the joint family properties to sale and the 15th defendant in the present suit, who is the son of the said Ammani Ammal purchased all the items of the joint family properties in court auction sale on 29th July, 1955 and took delivery of the same on 12th October, 1955.
4. Challenging the purchase of the Entire joint family properties in the court auction sale by the 15th defendant, the 14th defendant in the present suit, filed O.S. No. 37 of 1966, on the file of the court of the Subordinate Judge of Ramanathapuram at Madurai for partition and separate possession of his share in the joint family properties. In the said suit, namely, O.S. No. 37 of 1966, the decree holder, namely, Ammani Ammal and, the defendants 15 to 17 in the present suit were also parties apart from all the other joint family members including the plaintiff in the present suit. The said suit was decreed by the trial court overruling the objection raised by the court auction purchaser, 15th defendant in the present suit, and the said decree was also confirmed by the first appellate court in A.S. No. 77 of 1970 and also by this Court in N.R. Janaka Raja v Sivalinga Raja and 16 others. The judgment in S.A. No. 1244 of 1970 was given on 28th April, 1973. Pursuant to the decree in O.S. No. 37 of 1966, confirmed by the appellate courts, the 14th defendant who was the plaintiff in O.S. No. 37 of 1966, got his share divided by metes and bounds., and those properties are described as B Schedule properties in the present Suit.
5. The present suit, again for the partition and separate possession of plaintiff’s 1/12th share as stated above, was filed on 24th September, 1975.
6. Defendants 15 to 17 contested the claim of the plaintiff on various grounds including that the suit is barred by limitation. The trial court, while holding that the debt contracted by defendants 2 and 3 is not binding upon the other members of the joint family and that under the court auction sale, the 15th defendant acquired only the right title and interest of defendants 2 and 3 alone, further held that the suit is barred by limitation, and consequently dismissed the suit.
7. The appeal preferred by the plaintiff in A.S. No. 185 of 1977 was heard and disposed of by the learned District Judge, Ramanathapuram at Madurai. The lower appellate court confirmed the judgment and decree of the trial court and consequently dismissed the appeal. For the sake of completion of narration, it may be mentioned that the other joint family members preferred cross-objections in the first appellate curt. Along with the appeal, the lower appellate court dismissed the cross-objections as well.
8. In the circumstances the plaintiff has filed the second appeal. The cross-objectors have not preferred any further cross-objections in this second appeal.
9. Mr. M.R. Narayanaswamy, Learned Counsel appearing for the appellant, submitted that both the courts below miserably failed to take note of an important aspect, namely, the scope and effect of the earlier judgment and decree in O.S. No. 37 of 1966 confirmed in A.S. No. 77 of 1970 and also in N.R. Janaka Raja v. Sivalinga Raja and 16 others S.A. 1244 of 1970. According to the Learned Counsel, in the light of the judgment and decree in O.S. No. 37 of 1966, the present plaintiff could have simply filed an application for determining his share in the joint family properties by paying proper court fee and no one could have prevented the plaintiff from getting his share determined and separate possession being given thereafter. This aspect was completely lost sight of by the courts below in dismissing the suit for partition and separate possession. The Learned Counsel brought to my notice a finding given by Ismail, J, as he then was, in S.A. 1244 of 1970. The learned Judge, in the course of the Judgement, has observed as follows:
His only case is that he had paid the debts due to the 18th defendant, his mother, as well as to the wife of D.W. 4 in part. Under these circumstances, the learned Additional Subordinate Judge rightly held that this matter could be agitated in appropriate proceedings and the first defendant being a co-owner along with others by virtue of his Court auction purchase with reference to the undivided interest of defendants 7 and 10 can claim his contribution in the event of his proving that he has discharged in part the. debts binding on the family.
Placing reliance on the above observation, the contention of the Learned Counsel is that the 15th defendant in the present suit who was the 1st defendant in the earlier suit, being a co-owner, as held by this Court, cannot deny the share of the plaintiff or non-suit the plaintiff on the basis of adverse possession or bar of limitation.
10. Mr. K. Ramamurthy, Learned Counsel for the contesting 15th defendant, in his elaborate arguments supported by numerous authorities, submitted that the cause of action for the suit must be held to have arisen on 29th July, 1955 when the joint family properties were sold in court auction. The present plaintiff was not even born on that date and the joint family properties having gone out of the family, it is not open to the plaintiff, who was born long subsequent to the court auction sale, to challenge the sale itself. Equally, it is not open to the plaintiff to take advantage of the proceedings in O.S. No. 37 of 1966. According to the Learned Counsel, the judgment and decree in O.S. No. 37 of 1966, notwithstanding confirmation of the same by the appellate courts is not valid in law as the argument based on Sections 6 and 7 of the Limitation Act was not raised and noticed. He also contended that assuming that the findings in O.S. No. 37 of 1966 are binding, even then, in view of the findings in that suit to the effect that the court auction sale was binding only with reference to the undivided shares of defendants 7 and 10 herein and the same was void with reference to the other shares, it must be deemed that so far as the other sharers are concerned, the possession taken by the 15th defendant, of the joint family properties on 21st October, 1955 is adverse and, therefore, the present suit filed after 20 years is definitely barred by limitation. According to the Learned Counsel once adverse possession starts, the plaintiff cannot stop it. The plaintiff in the present case, according to the Learned Counsel, cannot take advantage of Section 6 of the Limitation Act, and applying the provisions of Section 7 of the. Limitation Act, the suit must be held to be barred by limitation. The last point, the Learned Counsel conceded, was not taken either before the lower appellate court or before the trial court.
11. In support of the above arguments, the Learned Counsel cited numerous authorities. For the position that the plaintiff who was born long subsequent to the Court auction sale, cannot challenge the sale itself, he cited the following judgment, Rajaram Tewary and Ors. v Luchmun Pershad and Anr. 8 Weekly Reporter 16. The head-note reads as follows:
According to the Mitakshara Law, a son acquries by birth a right in ancestral property and has a right during his father’s life time to compel a partition of such property. The father cannot, without the consent of the son, alienate such property except for sufficient cause; and the son may not only prohibit the father from so doing; but may sue to set aside the alienation if made. The cause of action to the suit accrues when possession is taken by the pur laser. A new cause of action does not accrue, upon the consequent birth of a younger brother, either to the elder brother alone, or to him and his brother jointly.
Ujagar Singh v Pritam Singh I.L.R.4 All. 120. The headnote reads as follows:
A mauza, of which the ‘proprietary right formerly belonged to one zamindar, the ancestor of the plaintiff, was sold, whilst in the possession of the generation succeeding him, for arrears of revenue, and became the property of the Government by purchase. The Government, before the birth of the plaintiff, restored it in four equal shares to the family of the old proprietors, then consisting of four members, one being the plaintiff’s father who thus obtained possession of a five biswas share. Held that, whatever interest the plaintiff, as son, might have under the Mitakshara law, in’ ancestral property, it could not be said that, at the time of his birth, there was any proportinate share in the mauza in which he could, by birth, acquire an interest, except this five biswas share.
In this suit the plaintiff sought to have set aside, so far as it affected him, a decree, to which his father hid consented, declaring his father’s right to a five biswas share only. Held that, even supposing that the father (who was living) might nave some right in him to procure an alteration of the grant, such a right was not one in which a son would by his birth acquire an interest.
12. The next case cited by the Learned Counsel is Sitaram Singh and Anr. v Cheddni Singh and Ors. A.I.R. 1924 A11. 798, wherein it was held thus:
Successive causes of action cannot arise as new members are born year after year.
In Nandlal Rampratap Marwadi v Deorao Marutrao Deshmukh A.I.R. 1940 Nag. 94 the ratio in Sita Ram Singh and Anr. v. Cheddi Singh and Ors. A.I.R. 1924 All. 798. was followed.
13. In Udayamuthier v Shanmugam Chetitiar A.I.R. 1935 Mad. 431 : 41 L.W. 610 the head-note, (a) reads as follows:
A Hindu son who was not born at the time of the alienations made by his father has no cause of action to institute a suit to set aside the same and therefore he cannot avail himself of the privileges given to him by Section 6, i.e., the extended period of three years from the cessation of his minority. This extended period can only be claimed by a Hindu to enforce his right to set aside the alienations made by his father as governed by Article 126 of the Limitation Act.
14. In Visweswara Rao v Surya Rao A.I.R. 1936 Mad. 440 : 70 M.L.J. 360 : I.L.R. 59 Mad. 667 : 43 L.W. 349. it was held as follows:
Whether or not an after-born son can effectively join with existing sons to attack or resist an alienation, the cause of action or the right to defend is a cause or right that was in those members of the family that were alive at the time for the alienation and were not consenting the right to attack begins to exist at the moment of the alienation arid at the highest exists in all the members of the family that exist while such right of action is intact. If that right of action is lost by those members of the family who had it when it arose, i.e., those coparceners were in existence and not consenting at the time of the alienation. If that right of action is lost by them by the operation of the statue of limitation, it is lost to the family and does not live on is some child who becomes a co-parcener even during the lifetime of the coparceners that existed when the alienation took place where such coparceners cause of action has been barred. And by parity of reasoning just as where the right of action possessed by the coparcener so existing at the time of the alienation if barred, is lost not only by them but also by any member of the family later born if they allowed the period of limitation to expire, so it is also lost if those persons who were in existence at the time of the alienation lost that cause of action by death before there came into existence the after born child; for the after born child has got no right of action in himself, no individual and separate cause of. action that springs up immediately he is born, but his right to contest, if any, is derived from the right that those in existence at the time of the alienation who were not consenting had, and the right is lost to him when it is lost to them and it is lost to them when they die, or when they permit the period of limitation to expire.
15. The next case is Soundarajan v Saravana Pillai (1916) 30 M.L.J. 592, wherein the head-note reads as follows:
In 1885, plaintiff’s father sold away the whole of his family property to one S.S. brought O.S. No. 21 of 1887 for possession of the property sold A razinama decree was passed that on payment of a certain amount within a certain time, he should give up his claims to the property but that in default of payment, possession should be delivered to him. Plaintiff’s father failed to make the payment and S got possession in 1899. In 1906, plaintiff’s brother who was in his mother’s womb in 1885, at the date of the sale brought a suit to set aside the sale and got his third share. The present suit was brought in 1910, to get his share of the property.
Held (i) That the entire family property having been sold in 1885 there was no property left in which the plaintiff could take an interest by birth.
(ii) That Article 126 applied to the claim and more than three years having elapsed since plaintiff’s brother attained majority, the suit was barred.
16. On the submission that the contesting 15th defendant has prescribed title by adverse possession and the suit is, therefore, barred by limitation, the following cases are cited. Bhav Rao v Rakhmin (1899) I.L.R. 23 Bom. 137. report in the head note reads as foilows:
Where co-parceners have alienated their shares in the joint property by sale and mortgage, and the alienees have been in possession for more than twelve years, a claim for partition is, as against such alienees, barred by limitation under Article 144 of the Limitation Act (XV of 1877).
Article 127 of Schedule II of the Limitation Act (XV of 1877) does not apply except in cases between members of a joint family. It does not apply to the case of a stranger to the family holding property which originally belonged to the family. As to him the ordinary rule of limitation (Article 144) applies
17. In Fakirappa v. Rudrappa A.I.R. 1932 Bom. 255, reported in the head-note (b) reads as follows:
Where a specific portion of the joint family property is sold by a co-parcener to a stranger and possession is delivered to him, the possession of the purchaser is adverse to the other co-parceners from the moment of the purchaser’s entry.
In Jivaji Keshav v. Venkatesh Krishna A.I.R. 1940 Bom. 136 reported in the head-notes (d) and (a) read as follows:
A Hindu succeeding to an interest in a coparcenary estate is not entitled to any special or separate interest in that coparcenary property, nor to an exclusive possession of any part of that property. That is the essence of a right which a Hindu governed by the Mitakshara acquires by birth in coparcenary property. There is community of Interest and unity of possession between all the members of the family.
An alienation by coparcener in excess of his powers gives rise to a single cause of action common to all the coparceners and the coparceners including those born after the alienation, have not a separate cause of action. The cause of action would be identical and the time would commerce to run from the date on which the possession of the alienee became adverse to the coparcenary estate. Hence a suit by a Hindu to set aside an alienation of the joint family property made before his birth by his grandfather without any justifying cause is barred by limitation, if instituted more than 12 years after the date of the alienation.
In Rachappa v. Madivalawa A.I.R. 1945 Bom. 63, reported in the head-notes (b) and (c) reads as follows:
Where the person entering into possession is, under no duty to the minor, and has entered into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run from the date when he has taken possession and his adverse possession against the minor commences from the date on which he has taken possession, though the minor would be entitled to file a suit within three years from the date of his attaining majority.
Subsequent birth of a coparcener does not create a fresh cause of action or a new starting point from which limitation should be reckoned. By the express terms of Section 6 the extended period of three years after majority can be claimed only by a person entitled to institute a suit at the time from which the period of limitation is to be reckoned. A person who was not in existence at the time does not come within that description and, therefore, he is not entitled to the three years’ extension.
In Palania Pillai v. Amjath Ibrahim (1942) 2 M.L.J. 321 : I.L.R. (1943) Mad. 15 : A.I.R. 1942 Mad. 622 : 55 L.W. 532 (2)(F.B.) the head-note (b) reads as follows:
Where a person who is in possession under a usufructuary mortgage granted by one of several cosharers remains in possession of the land and cultivates it for years, the requirements of continuity, publicity and extent for adverse possession are fully complied with. Consequently, where some co-owners usufructuarily mortgage specific items of property held by the members of a Mahomedan family and the mortgagee enters into possession of the mortgaged items under his mortgage deed, a suit to recover the share therein by other members of the same family is barred by Art.144 at the end of twelve years of such possession as the possession of the mortgagee becomes adverse, against the other members from the moment of the entry into possession by the mortgagee and not from the date of ouster to their knowledge.
18. In Joseph v. John the head note reads as follows:
The sole possession of a co-owner, though of the whole property, is referable to the lawful title as co-owner in the absence of evidence to the contrary. But this principle has no application to, the sole possession of one, who is not in fact a co-owner, but who has obtained possession of the whole property from one who was a co-owner, by virtue of a transfer or otherwise, for this purpose he must, as he really is, be treated to be a stranger to the other co-owners. Adverse possession as between strangers, has only to be adequate in continuity, in publicity and in extent, to show that it is adverse to the competitor, It is sufficient, that such attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. The possession of a stranger of joint property is prima facie adverse, and satisfies these elements of adverse possession. Hence, the possession of a transferee from a co-owner, of the whole property, is adverse to the other co-owners from the moment of his entry.
19. In Karthiyayani v. U. Kalyani , the head-note (a) reads as follows:
The very fact that a stranger has been inducted into possession and consequently possession of the original co-owners terminated would be sufficient to put the other co-owners to notice of the conduct of the alienating co-owners. Therefore ouster would be to their notice and possession of the transferee would be adverse from the date of mortgage as regards the property which the mortgagee was put in possession of under the mortgage.
20. In Seetaramaraju v. Subbaraju (1922) I.L.R. 45 Mad. 361 : A.I.R. 1922 Mad. 12 : 42 M.L.J. 262, the head-note reads as follows:
It cannot be stated as a general proposition that there could be no adverse possession of property which belongs to a lunatic or minor during the continuance of the lunacy or minority. The question in each case has to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic and to whether any circumstances exist which would entitle the Court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic. Under the Limitation Act, lunacy or minority does not by itself prevent time from running as against the lunatic or minor, although an extended period is provided in such cases.
21. Mr. M.R. Narayanaswamy, the Learned Counsel for the appellant submitted that he has no quarrel with the proposition laid down in the cases cited by the Learned Counsel for the contesting respondent. He further said that a Division Bench of this Court in Venkatesan (alias) Padmanabhan v. Neelayathakshi Ammal and Ors. (1972) 11 M.J.J. 495 : 86 L.W. 718, after reviewing almost all the earlier important cases, has reiterated the same dictum. The head-note in the said Division Bench judgment reads as follows:r
D and V were brothers and minors. Their uncle B sold the suit properties in 1945 on behalf, of himself, his son and as guardian of his nephews D and V. D and V attained majority and constituted a joint family. D as elder brother was manager of the joint family. In 1962, V filed a suit for partition and separate possession of his share in the suit properties after setting aside the alienation. This suit was within 3 years of his attaining majority. However, D had not instituted any suit for setting aside the alienation within the period of limitation. On the question of limitation:
Held, D as manager of the joint family consisting of himself and V should have instituted a suit within a period of three years of his attaining majority, as provided in Section 8 of the Limitation Act, since adverse possession commenced from the date of alienation, and he having failed to do so, the suit, was barred by limitation even with reference to V.
22. However, Mr. K. Ramamoorthy firmly contended that the decision of a Division Bench in Soundararajan v. Saravana Pillai (1916) 30 M.L.J. 592, will squarely apply to the facts of the present case. According to the Learned Counsel, the facts in Soundararajan v. Saravana Pillai 30 M.L.J. 592, are almost identical to the facts of the present case.
23. As the Learned Counsel for the contesting respondent feels that the ratio laid down in Soundararajan v. Saravana Pillai 30 M.L.J. 592 squarely applies to the facts of the present case, the same has to be considered little elaborately. The head-note fairly sets out the facts and the ratio which reads as follows:
In 1885, plaintiff’s father sold away the whole of his family property to one S.S. brought O.S. No. 21 of 1887 for possession of the property sold. A razinama decree was passed that on payment of a certain amount within a certain time, S should give up his claims to the property but that in default of payment, possession should be delivered to him. Plaintiff’s father failed to make the payment and S got possession in 1899. In 1906, plaintiff’s brother who was in his mother’s womb in 1885, at the date of the sale brought a suit to set aside the sale and got his third share. “The present suit was brought in 1910 by the plaintiff who was born in 1901 to get his share in the property.
Held (i) That the entire family property having been sold, in 1885 there was no property left in which the plaintiff could take an interest by birth.
(ii) That Article 126 applied to the claim and more than three years having elapsed since plaintiff’s brother attained, majority, the suit was barred.
On a careful perusal of the judgment in Soundararajan v. Saravana Pillai 30 M.L.J. 592, I am of the view that the Learned Counsel for the contesting respondent is not at all right in claiming that the facts of the case are identical to the facts of the present case. It is seen that in the case reported in Soundararajan v. Saravana Pillai 30 M.L.J. 592, the father and the ‘kartha’ of the Joint Hindu Family sold away the entire property of the joint family some time in February, 1885 when the first son of the ‘kartha’ was in the womb. The purchaser, pursuant to a razinama decree in O.S. No. 221 of 1887, got possession of the property in 1899. The first son then filed a suit in O.S. No. 241 of 1906 for recovery of his 1/3rd share in his own individual interest. The Court found that out of the total sale consideration of Rs. 4,000, a sum of Rs. 3,706 alone was held binding on the entirety of the property sold. The Court further enabled the first son to recover his 1/3rd share on payment of one-third of Rs. 3,706. That decree was ultimately upheld by this Court in second appeal on 4th February, 1910. It may be mentioned that the second son was a party to the suit, namely, O.S. No. 241 of 1906 filed by his elder brother. Immediately thereafter, the second son who was born on 20th December, 1901, i.e. nearly after 16 years of the alienation and after the suit filed by his elder brother in the year 1906 was decreed for his 1/3rd share in the year 1910, filed a suit O.S. No. 249 of 1910 for recovery of his share. In that context, the Division Bench held as follows:
But as the plaintiff’s brother sued for recovery of his alleged one-third share in his own individual interest, that suit cannot be said to have been brought in the interests of the plaintiff and it cannot be held that the alienation was set aside in the former suit of 1906 as regards the interests of the plaintiff also in the plaint properties. The plaintiff therefore was bound in his own suit (that is, the present suit) by the terms of Article 126 of the Limitation Act which gives a period of 12 years, from the date when the alienee takes possession of the property, for a suit by a Hindu son to set aside his father’s alienation. As the plaintiff’s brother could have brought such a suit as regards the plaintiff’s share also (assuming that plaintiff had a share) and did not do so, the plaintiff is now barred more than three years having elapsed from the date of the plaintiff’s brother’s attainment of majority when this suit was brought.
But, coming to the facts of the present case, it is entirely different. O.S. No. 37/66, filed by the 14th defendant in the present case, was a suit for partition and separate possession of his share in the joint family properties. That suit proceeded on the basis that on the date of the suit, there was joint family consisting of the sons and grandsons of the deceased Muthia Raja. It is also seen that the plea was that the alienation by the present defendants 7 and 10 will not bind the undivided shares of other joint family members. The finding in that suit was also that the contesting 15th defendant would be entitled to the undivided share of defendants 7 and 10 and the court auction sale will not bind the shares of other co-owners. Not only that, a further finding was also given to the effect that the contesting 15th defendant would be a co-owner along with the other co-owners. These facts and findings are distinguishable from the facts of the case reported in Soundararajan v. Saravana Pillai (1916) 30 M.L.J. 592. The finding given in O.S. No. 37 of 1966 to the effect that the court auction purchase by the contesting 15th defendant will not bind the shares of other co-owners, except defendants 7 and 10 is certainly to the advantage of the plaintiff. The effect of such a finding is the joint family properties are available for partition among the co-owners. In the case, reported, in Soundararajan v. Saravana Pillai (1916) 30 M.L.J. 592, the entire property was sold by the ‘kartha’ of the family and the suit was one for recovery of the plaintiff’s share alone as seen earlier. One other factor here is that the sale in the case in Soundararajan v. Saravana Pillai (1916) 30 M.L.J. 592, was a voluntarary one, but in the present case, it was involuntary. For these reasons, I am unable to agree with the Learned Counsel for the contesting 15th defendant that the ratio laid down by the Division Bench of this Court in Soundararajan v. Saravana Pillai (1916) 30 M.L.J. 592, will squarely apply to the facts of the present case.
24. The contentions of Mr. Ramamurthy would have been helpful to the contesting defendant in this case but for the intervening fact that in O.S. No. 37 of 1966, to which the contesting 15th defendant in the present suit was a party, a clear finding in S.A. No. 1244 of 1970 was given to the effect that the 15th defendant is a co-owner. Further, in all these cases cited, the transfer or alienation was voluntary. But, in the present case, the transfer was an involuntary one through the court. In any event, the contesting 15th defendant canot escape the consequences of the findings, judgments and decrees of O.S. No. 37 of 1966, A.S. No. 77 of 1970 and S.A. No. 1244 of 1970. The contention that those findings will not bind the contesting 15th defendant cannot be accepted in view of a judgment of the Supreme Court in Mohanlal v. Bendy Krishna . It is held in that case as follows:
There is ample authority for the proposition that even an erroneous decision on a question of law operates as ‘res judicata’ between the parties to it. The correctness or otherwise or a judicial decision has no bearing upon the question whether or not it operates as ‘res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.
Therefore, the present case has to be considered in the light of the findings rendered in O.S. No. 37 of 1966, A.S. No. 77 of 1970 and S.A. No. 1244 of 1970. As noticed above, the contesting 15th defendent was held to be a co-owner and from the date of the proceedings in that suit, the plaintiff has filed the present suit within 12 years. Therefore, on the facts, it cannot be held that the limitation starts from the date of the court auction sale, namely 29th July, 1955 as contended by the Learned Counsel for the contesting 15th defendant. Still further, as held by this Court in Krishnayya v. Udayalakshmamma (1953) II M.L.J. 241.
In law, the possession of one co-owner is the possession of all the co-owners. To constitute adverse possession, therefore, there must be something more than mere exclusive perception of profits. There must be an ouster. That is to say, there must be a denial of the rights of the co-owners over the property and the denial must be made to their knowledge.
Again, in Lakshminarasamma v. Ram Bahramam (1950) 1 M.L.J. 350 : 63 L.W. 258 this Court has held as follows:
If then the first defendant and the plaintiff were in law co-owners, the question is whether there is evidence of ouster or exclusion. As laid down in the leading case of Corea v. Appusamy L.R. 1912 A.C. 230 the possession of the 1st defendant was in law the possession of the co-owner the plaintiff. Possession is never considered adverse if it can be referred to a lawful title. Mere non-participation in the profits of the property by one co-owner and exclusive possession by the others will not be sufficient to Constitute adverse possession by the latter. To constitute ouster by a co-owner there must be open and unequivocal denial of the title of the other co-parceners to the knowledge of the plaintiff. Uninterrupted sole occupation of common property without more must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot be regarded as an assertion of right to hold it as separate.
Further, the contention of Mr. M.R. Narayanaswamy that the plaintiff who was also a party defendant in O.S. 37 of 1966 could have filed an application for determining his share by paying court-fee in that suit itself cannot be dismissed without substance as I find much force in that contention. The cases cited by the Learned Counsel are all distinguishable on facts and, therefore, I have not extracted the passages in detail and I feel that it is not necessary to refer them also in detail particularly in view of the argument of Mr. M.R. Narayanaswamy, the Learned Counsel for the appellant, that he has no quarrel with the propositions laid down in the cases cited by the Learned Counsel for the contesting respondent. As pointed out earlier, the one factor, namely, the judgment and decree in O.S. 37 of 1966, as confirmed by the appellate courts, in my view, heavily support the contentions raised on behalf of the appellant. This has not been duly noticed and appreciated by the courts below. The argument advanced by the Learned Counsel for the contesting 15th defendant based on Sections 6 and 7 of the Limitation Act need not also be considered in view of the findings in the earlier suit (O.S. 37 of 1966) confirmed by the appellate courts, which are binding on the contesting 15th defendant, I hold the suit is not barred by limitation.
25. It is not disputed that if the suit is not barred by limitation, the plaintiff is entitled to the share as claimed in the plaint.
26. In the result, the second appeal is allowed and the judgments and decrees of the courts below are set aside. There will be a preliminary decree for partition and separate possession of the plaintiff’s 1/12th share in the A Schedule properties excluding the items in the B Schedule. Regarding the mesne profits, the same is relegated to separate proceedings under Order 20, Rule 12 of the Civil Procedure Code. No costs.
This Second Appeal having been posted this day for being mentioned, on the letters of the counsel for the Appellant, dated 12.2.1986, the Court delivered the following judgment:
The Second Appeal is posted at the instance of the Learned Counsel for the appellant, Both the Learned Counsel agree that the decree can be drafted without making any reference to the plans mentioned in B Schedule in the plaint, as no such plans have been filed in this suit.