JUDGMENT
Ramakrishnan, J.
1. The first defendant in O.S. No. 85 of 1958 on the file of the District Munsif, Mannargudi, is the appellant herein. The circumstances necessary for a consideration of this Second Appeal are briefly the following. The suit property belonged originally to one Sevu Ambalam who died several years ago leaving behind a widow by name Pothiathal. Two sons of Sevu Ambalam had predeceased him, and they had left behind three daughters, Rajammal, Sambu Ammal and Veerammal, the three defendants in the suit. Pothiathal left a will, dated 23rd April, 1931, under which she bequeathed the suit properties to two of her grand-daughters, namely, defendants 1 and 3. The plaintiff purchased from the third defendant, the latter’s share in the suit properties under the will, by a sale-deed, dated 12th July, 1956. In a prior suit on the file of the District Munsif, Mannargudi, O.S. No. 272 of 1956, the plaintiff claimed possession of the properties he got under the sale-deed from the third defendant. That suit was dismissed on the ground that the will of Pothiathal was invalid. While disposing of that suit, the learned District Munsif made inter alia certain observations:
Even if the plaintiff’s vendor did not have half the right as per the terms of the will, Exhibit A-1, she was obviously entitled to 1/3rd share in the suit properties under the Hindu Law, and, therefore, a decree could be given in favour of the plaintiff for 1/3rd share of the suit properties. I am unable to accept this contention, since the unity of title which is essential in a suit for partition will be lacking in such a case. If the plaintiff had based his case alternatively on his vendor’s title according to the Hindu Law, I might have considered his case favourably. But there is neither a plea nor an issue about it….the suit must be dismissed. I am not awarding costs to the defendant, as the plaintiff has failed only on a technical point and it is not as if the sale-deed in favour of the plaintiff conveys nothing. The plaintiff may, if so advised, bring a separate suit on the same cause of action with reference to the actual share conveyed by Veerammal to plaintiff.
The present suit was filed by the plaintiff for partition and separate possession of 1/3rd share in the suit land and for past mesne profits. He relied for his relief, on the sale-deed Exhibit A-1 by third defendant to him executed on 12th July, 1956. After referring to the will and the finding against the will in the prior suit, the plaintiff contended that the purchase by him from the third defendant would, in any event, give him an 1/3rd share in the properties, and hence the relief that was sought by him in the plaint. The first defendant who raised the principal contest, said that she had been in possession of the entirety of the suit properties in her own right after the death of Pothiathal. She had perfected her title by adverse possession. The suit was also barred under Order 2, Rule 2 of the Civil Procedure Code and Section 11, Civil Procedure Code. The alternative remedy now claimed should and ought to have been asked for in the prior suit. Since the plaintiff had not asked for it, the present suit is barred by res judicata.
2. The trial Court construed the sale-deed in favour of the plaintiff, from third defendant, and held that it was valid, even assuming that the will became inoperative, as it conveyed third defendant’s 1/3rd share to the plaintiff. Therefore the plaintiffs title to |rd share in the properties and the right to claim partition were affirmed. The plea of res judicata was found against, on the main ground that the issue in the present suit of plaintiff’s title to 1/3rd share, was not directly and substantially in issue in the earlier suit. The second defendant also was not a party to the prior suit. The trial Court also negatived the claim of the first defendant to title by adverse possession and decreed the suit for partition and separate possession of the plaintiffs 1/3rd share of the properties. The second defendant was also declared entitled to claim another 1/3rd share.
3. The first defendant appealed to the learned District Judge of West Thanjavur. The learned District Judge confirmed the trial Court’s finding, that the suit was not barred by res judicata. However, he construed the sale-deed by the third defendant, Exhibit A-1, as conveying only such rights which the third defendant got under the will of Pothiathal, and that it was not sufficient to convey to the plaintiff whatever interest or title the third defendant had in the properties sold. The effect of this finding was that since she (third defendant) got nothing under the will, the plaintiff also got nothing under the sale-deed. Therefore the sale-deed would not convey the right to 1/3rd share which the third defendant obtained as heir of the last male owner. In this view, the lower Appellate Court differed from the finding of the trial Court as well as the finding given by the Munsif who heard the earlier suit. It may be pointed out at this state that the third defendant was ex parte at the trial stage, but in the appeal, an application was filed on behalf of the third defendant for transposing her as plaintiff in the suit relying on the provisions of Order 1, Rule 10, Civil Procedure Code. The appellate Court examined the arguments for and against this petition and granted the prayer. Then it upheld the trial Court’s finding that the first defendant had not perfected title by adverse possession. A decree was thereupon passed in favour of the third defendant after transposing her as the second plaintiff and giving her relief of partition and separate possession of 1 /3rd share in the suit properties. It is against this decision that the present appeal is filed by the first defendant. Learned Counsel appearing for the appellant urged that this was not a case where permission should have been granted under Order 1, Rule 10, of the Civil Procedure Code to the third defendant, for being transposed as plaintiff. Secondly it was contended that the finding of the Courts below regarding the first defendant perfecting title by adverse possession was incorrect and should be reversed.
4. Taking the first point about transposing the third defendant as the plaintiff, the following considerations arise. Though the trial Court has found that the sale deed Exhibit A-1 conferred on the plaintiff, in any event, the third defendant’s 1/3rd share in the suit properties, the appellate Court’s finding was that the specific terms of the sale deed would cover only the rights which the third defendant obtained under the will, but not the rights obtained by her by succession to the last male owner. One cannot ignore the fact that this is a partition suit, in which all the sharers are interested in the relief, and it will be open to any one of the sharers entitled to the property, to claim relief of partition as if that party is the plaintiff in the suit. When it transpired in the trial Court that plaintiff got no right under the transfer from the other sharer namely, the third defendant, it would follow that the suit was instituted in the name of the wrong person as the plaintiff. The second question which will arise for consideration under Order 1, Rule 10, Civil Procedure Code, is whether such institution has been through a bona fide mistake. The learned Counsel appearing for the appellant has said that this cannot be considered as a case of a bona fide mistake, in view of the categoric finding of the lower appellate Court, that the sale deed did not convey any title to the plaintiff. While referring to the observations of the District Munsif who dismissed the prior suit, the lower appellate Court extracted the remarks of Varadachariar, J. in Maddalai Machamma v. Chaparala Kanakamma A.I.R. 1935 Mad. 923 regarding ” gratuitous judicial advice, which may turn out to be unfortunately incorrect or wrong ” . But the lower appellate Court has not used this quotation for the purpose of drawing an inference against the bona fides of the plaintiff. After referring to the observations of Varadachariar, J., the lower appellate Court was prepared to treat the mistake as bona fide one on account of the observations of the District Munsif in the prior suit. In the present case, there are not merely the observations of the District Munsif who dismissed the prior suit, but there is also the finding of the trial Court that the plaintiff obtained title to file the present suit property under conveyance form the third defendant. It is, therefore, in support of the plaintiff’s claim to a bona fide mistake that at least two Courts of law entertained the opinion that the plaintiff got rights under the conveyance deed, and this opinion was corrected only when the matter was more fully gone into in the lower appellate Court. The learned Counsel for the appellant, referred me to a decision of the Andhra High Court in Rameswara Das Bavaji v. Vuppuluri Purnachandra Rao A.I.R. 1958 Andh. Pra. 494. That was a case which was decided upon its own facts. The Court distinguished these facts from those in other decisions, which were quoted before it; for example, John Boisogomoff v. Manmathanath Malli (1930) I.L.R. 58 Cal. 561 and so on, and observed:
The possibility of transposition which often amounts to a virtual substitution of a new plaintiff for the plaintiff on record, turns on the question whether the very institution of the suit by the plaintiff is under a bona fide mistake as to his rights, capacity or status….Bona fides are borne out by several circumstances.
Therefore, the question of bona fides must depend on the circumstances in each case. In the present case the very fact that two Courts of law entertained the same view as. the plaintiff, and that the mistake really arose as to how the terms of the particular document will have to be interpreted, are circumstances which, in my opinion, justify the view taken by the lower appellate Court that this was a case of institution of a suit for partition in the name of the plaintiff through a bona fide mistake.
5. The third ingredient necessary for the application of Order 1, Rule 10, Civil Procedure Code is whether it is necessary, for the determination of the real matter in dispute, to make the substitution. In the present case there are three sharers to the property, defendants 1,2, and 3. The first defendant has taken an independent stand denying the rights of the other sharers for the partition, but on the other hand defendants 2 and 3 have throughout claimed a right to partition and the plaintiff has stood only in the shoes of the third defendant for the relief. It was, therefore, necessary to do justice to all the parties, who sought from the Court the relief of partition of the shares to which they are entitled. Since the plaintiff stands only in the shoes of the third defendant, and since the plaintiff’s title has been found to be not established, the third defendant can rightfully seek the relief in lieu of the plaintiff. Therefore there is no doubt that the third condition of Order 1, Rule 10, Civil Procedure Code is also attracted. I therefore confirm the finding of the lower appellate Court that it is a proper case for invoking Order 1, Rule 10, Civil Procedure Code.
6. Regarding adverse possession, the first defendant had claimed to be in possession of the whole property but she has not established her exclusive title to it. The finding is that she as well as her cousin sisters got the property from the last male owner.. There is no other alternative source of title established in the case. Therefore defendants 1, 2 and 3 are co-owners. The first defendant has set up exclusive possession but it is well known that one co-owner’s possession of the entire property, by itself, will not amount to ouster of the other co-owners. Other circumstances which unmistakably point to ouster are necessary. But there is no evidence to prove ouster in the case of the first defendant. The concurrent findings of both the Courts on this point are also binding on me. I therefore confirm the finding of the lower appellate Court and dismiss the Second Appeal with costs. No leave.
