Partition - ouster - The possession of a co-owner however long it may be, hardly by itself, will constitute ouster.

 

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2022 LiveLaw (SC) 165
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
K.M. JOSEPH; HRISHIKESH ROY, JJ.
CIVIL APPEAL NO(S).2652-2654 OF 2013; February 09, 2022
B. R. PATIL v. TULSA Y. SAWKAR & ORS.

Code of Civil Procedure, 1908 - Order II Rule 2,3 - Joinder of causes of action - 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 - The Code of Civil Procedure indeed permits a plaintiff to join causes of action but it does not compel a plaintiff to do so. (Para 16, 17)

Code of Civil Procedure, 1908 - Order I Rule 3 - Non-joining of necessary parties is fatal. (Para 18)

Partition - 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. (Para 10) Partition - 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. (Para 11)

Partition - ouster - The possession of a co-owner however long it may be, hardly 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 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 - 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. (Para 24)