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Supreme Court Of India

(From : Madras)

Hon'ble Judge(s): Kurian Joseph, Rohinton Fali Nariman , JJ

(A) Civil P.C. (5 of 1908) , S.11— Bar of res judicata - Suit if founded upon same cause of action which was foundation of former suit - Earlier suit for possession of entire property based on settlement deed - Later suit for partition was for plaintiff's one half share in property based on her birth right - Cause of action is entirely different - Suit for partition not hit by principle of res judicata. (Para 18) (B) Limitation Act (36 of 1963) , Art.64, Art.65— Adverse possession - As between co-owners - There must be open assertion of title - Suit for partition - Plea of defendant that after death of grand-father in 1955 property vested in his father and after his death in 1956 defendant has been in exclusive possession and enjoyment of suit property - Defendant has taken a specific plea of hostile animus and exclusive possession - However, with a view to putting end to five decade old dispute between sister and brother, court suggested reasonable settlement - Accordingly, orders that defendant shall be entitled to 35% and plaintiff 65% of share in property. (Para 20 24 25) .....