Lakshmi v. Chembakakutty and Prassannan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932** **RSA.No. 1008 of 2007()** **----------------------** **RFA.151/2003 of I ADDL. DISTRICT COURT, KOLLAM OS.72/1997 of SUB COURT,KOTTARAKKARA** **....................** ## **APPELLANT/APPELLANT:DEFENDANT:** **---------------------------------------------------------** **LAKSHMI, AGED 56 YEARS, D/O.ADHICHA, THUVATTARA, THEKKEKKARA VEEDU, EROOR VILLAGE, PATHANAPURAM TALUK.** **BY ADVS. SRI.G.SHRIKUMAR, SRI.SREEJITH S.NAIR.** ## **RESPONDENT(S): RESPONDENTS:PLAINTIFFS:** **----------------------------------------------------------------------** **1. CHEMBAKAKUTTY, AGED 56 YEARS, W/O.GOPALAN, SANKARAMANGALATHU VEEDU, MEEYANNOOR MURI, PALLIMON VILLAGE, KOLLAM TALUK.** **2. PRASANNAN, AGED 38 YEARS, S/O.GOPALAN, RESIDING AT DO. DO.** **R1 & R2 ADVS. SRI.V.VENUGOPALAN NAIR, SRI.N.M.VARGHESE.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON 30/07/2010 DELIVERED THE FOLLOWING:** ## **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1008 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of July, 2010. ## **JUDGMENT** The defendant in O.S. 72 of 1997, which was a suit for partition is the appellant. She suffered a preliminary decree, which was confirmed in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs, the plaint schedule property having an extent of 2 acres of land comprised in Sy. No.576/IP/126 of Yeroor Village belonged to the first plaintiff's husband's father Chadayan Ayyappan, who obtained it as tenant. He was in absolute possession and enjoyment of the property. According to the plaintiffs, Chadayan Ayyappan had married Theni as per the religious rites and in the wedlock first plaintiff's husband Gopalan was born. As their relationship became strained they resided R.S.A.1008/2007. 2 separately. Chadayan Ayyappan later lived with Adicha and in the relationship Lakshmi, the defendant was born. Since there was no marriage between Adicha and Chadayan Ayyappan, Lakshmi has no legal status. Therefore, she is not entitled to any property left by Chadayan Ayyappan. It is claimed that Gopalan was living with Chadayan Ayyappan and the plaint schedule property was looked after by Gopalan. After the death of Chadayan Ayyappan, according to the plaintiffs, the property was being looked after by Gopalan and defendant Lakshmi. Since the relationship between them were cordial Chadayan Ayyappan had asked Gopalan to give one half of the property to Lakshmi and her mother Adicha. Even though Lakshmi and her mother had no rights over the suit property, in view of the desire and wish expressed by Chadayan Ayyappan, the plaintiffs are willing to give half share to Lakshmi and Adicha. Gopalan died on 23.1.1995 and thereafter the relationship became strained. The plaintiff did not want to continue the joint ownership and thus the suit for partition R.S.A.1008/2007. 3 was instituted. 3. The suit was resisted by the defendant. It is pointed out that the suit was barred by the principle of res judicata. The relationship set up in the plaint was specifically denied. According to the defendant, Gopalan had nothing to do with Chadayan Ayyappan nor is Gopalan the son of Chadayan Ayyappan. There was a series of cases in respect of the suit property, in which it was found that Gopalan, the husband of the first plaintiff had no manner of right over the suit property as he was not related to Chadayan Ayyappan. Gopalan was never in possession of the property as claimed in the plaint and it was in the possession and enjoyment of the defendant and her mother. Even assuming that Gopalan and the plaintiffs had any manner of right over the suit property, the same has been lost by adverse possession and limitation. In the year 1974, the defendant put up a new house and she has been treating the property as her own and nobody else has any right over the same. On the basis of these contentions, she prayed for a dismissal of the suit. 4 R.S.A.1008/2007. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 5 and the documents marked as Exts.A1 to A25. The defendant had D.W.1 examined and Exts.B1 to B17(a) marked. On an evaluation of the evidence, the trial court found that the marriage between Theni and Chadayan Ayyappan was established and therefore the claim of the plaintiffs is sustainable. Since the defendant was also the daughter of Chadayan Ayyappan, she is entitled to half share over the property. Accordingly, a preliminary decree was passed. 5. The defendant carried the matter in appeal as R.F.A. 151 of 2003 before the District Court, Kollam. The District Court not only confirmed the preliminary decree, but also declared Lakshmi as the illegitimate child of Chadayan Ayyappan. Aggrieved by the judgments and decrees of the courts below, the defendant has come up in appeal. 6. At the time of admission of this appeal, this court formulated the following questions of law: R.S.A.1008/2007. 5 _“1) When Gopalan and his mother Theni, under whom respondents claim right in the property, who were defendants 1 and 2 in O.S. 94/1966, a suit for declaration and recovery of possession of the plaint schedule property and they did not contest the suit and court found that the appellant and her mother who were defendants 3 and 4 alone are the legal heirs of deceased Chadayan Ayyappan. Whether the courts below were justified in holding that the mother of Gopalan is the legally wedded wife of Chadayan Ayyappan, on the evidence of P.Ws. 2 and 3 who were not born at the time of the alleged marriage._ _2) When Gopalan and his mother did not contest O.S. 194/1966 the appellant and her mother continued their exclusive possession asserting their independent rights, whether rights, if any of the respondents, is lost by ouster and adverse possession.”_ 7. Learned counsel for the appellant pointed out that it is quite unfortunate that the courts below have missed the real issue involved in the case and has gone on R.S.A.1008/2007. 6 to decide the case on conjunctures and surmises. The question as to whether Gopalan was the son of Chadayan Ayyappan was no longer open to discussion in view of the decision in O.S. 194 of 1966 before the Munsiff's court, Punalur, which was confirmed in appeal and Second Appeal. In that decision, it was conclusively determined that Gopalan and his wife had no relationship with Chadayan Ayyappan and that has become conclusive. The reasons given for not applying the principle of res judicate by the court below are not sustainable in law. Again, learned counsel pointed out that even assuming that the principle of res judicata may not apply, still the court ought to have seen that the claim of the plaintiffs is barred by adverse possession and limitation. At any rate, as early as in 1966 in O.S. 194 of 1966 the defendant had specifically disputed the rights of Gopalan and his wife, who were co-defendants. In the said suit it had stated that Adicha and the defendant herein alone were in exclusive possession and enjoyment of the property. That was a suit instituted by a stranger against the R.S.A.1008/2007. 7 defendant, her mother, Gopalan and his wife. Atleast from 1966 onwards, there has been an open assertion by the defendant about her exclusive right over the property, and that could not have been omitted to be noticed by the court below. The courts below were therefore not justified in not accepting that plea also. Learned counsel also pointed out that it is rather strange that the courts below have accepted that the legally wedded wife of Chadayan Ayyappan is Theni. According to learned counsel, there was no justification in declining to uphold the defence set up by the defendant in the suit. 8. Learned counsel appearing for the contesting respondents on the other hand submitted that the courts below were perfectly justified in accepting the case put forward by the plaintiffs. There was clinching evidence to show that Theni was the wife of Chadayan Ayyappan and not Adicha. Learned counsel pointed out that may be that the defendant was born in the relationship between Chadayan Ayyappan and Adicha. But Adicha could not be treated as R.S.A.1008/2007. 8 the legally wedded wife of Chadayan Ayyappan. As far as the decision in O.S. 194 of 1966 is concerned, in the said suit Gopalan and his wife were only the defendants and any decision in that suit therefore cannot bind them because there was no inter se conflict between the defendants in the suit, which was necessary to be decided for giving relief to the plaintiffs. Further, Gopalan and his wife remained ex party and therefore by no stretch of imagination it cannot be said that the decision in O.S. 194 of 1966 could bind them. Equally unsustainable, according to learned counsel, is the contention based on adverse possession and limitation. According to learned counsel, the parties being co-owners, unless it is clearly shown that the plaintiffs had been ousted from possession and enjoyment of the property, the defendant could not succeed in her plea of adverse possession and limitation. The mere fact that they have neither shared the enjoyment of the property, nor the income from the property, by themselves are not sufficient 9 R.S.A.1008/2007. to constitute ouster. There is no such evidence of ouster in this case and therefore the decree is only to be sustained. 9. If as a matter of fact there is basis for the contention that the present plea of relationship between the plaintiffs with Chadayan Ayyappan is barred by the principle of res judicata or the plea is barred by adverse possession and limitation as set up by the defendants, then the issue as to whether Theni or Adicha was the legally wedded wife of Chadayan Ayyappan may not be of much significance. 10. The definite case put forward by the defendant was that the issue as to whether Gopalan was the son of Chadayan Ayyappan had been gone into in O.S. 194 of 1966 and the decision in that case was that Gopalan and his wife had no relationship with Chadayan Ayyappan. It had become final. That was a suit by a stranger for recovery of possession on the strength of title against Gopalan, his wife, Adicha and the defendant. Therein the defendant in this suit and her mother were defendants 3 and 4. The specific contention taken was that Theni was not the legally R.S.A.1008/2007. 10 wedded wife of Chadayan Ayyan and Gopalan was not his son. An issue was raised in the said suit and it was found in favour of defendants 3 and 4 in the said suit. The fourth defendant in the said suit is none other than the defendant in this suit. In support of her plea that the said decision operates as res judicata, learned counsel appearing for the appellant relied on the following decisions: i) Mariamma v. Charaghan (1959 K.L.T. 1050) ii) Kunjulekshmi Amma v. Velayudhan Nadar (1966 KLT 683) iii) Iftikhar Ahmed v. Syed Meharban Ali (AIR 1974 SC - 749) - iv) Chandu Lal v. Khallur Rahman (AIR 1950 PC 17) v) M/s. Makhija C & E.Pvt. Ltd. v. Indore Development Authority (AIR 2005 SC 2499). 11. Learned counsel appearing for the respondents on the other hand relied on the decision reported in **Sajjadanashin Sayed Md. B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer** (CDJ 2000 SC 109), **Saroja v. Chinnusamy** ((2007) 8 SCC 329) and **State of U.P. v. Jagdish Saran Agrawal** (CDJ 2008 SC 1972). R.S.A.1008/2007. 11 12. It is well settled that the principle of res judicata can be attracted in the case of co-defendants and co-plaintiffs as the case may be. In order to attract the principle, the following conditions will have to be satisfied: i) there must be a conflict of interest between the codefendants, ii) that it must be necessary to decide the conflict in order to give reliefs, which the plaintiff claims, iii) that the court had actually decided the question. 13. In the case on hand, the plea of res judicata set up by the defendant is the decision between the parties in O.S. 194 of 1966. The copy of the said judgment is produced and marked a Ext.B1. Both the courts below raised the issue as to whether the suit is barred by res judicata. The trial court observed that in O.S. 194 of 1966 Gopalan and his wife, who were defendants 1 and 2 were not found to be necessary parties to the suit. It was also observed that they had remained ex-parte. So the trial court goes on to observe that the decision was rendered behind the back of Gopalan and therefore the decision is not R.S.A.1008/2007. 12 conclusive and the legal heirship was not decided in Ext.B1 judgment. Therefore, the principle of res judicata cannot be applied. The appellate court on the other hand went on to observe that defendants 1 and 2 in Ext.B1 judgment had remained ex-parte and therefore the court observed that the finding that Theni had no relationship with Chadayan Ayyappan and Gopalan was not their son cannot be binding. Relying on the decision reported in **Mahboob Sahab v. Syed Ismail** (AIR 1995 SC 1205), the court went on to hold that applying the principles in that case, it could not be said that the decision operates as res judicata. 14. In the decision reported in **Mahboob Sahabs case** (supra) the four factors necessary to attract the principle of res judicata were emphasized. They are i) There must be a conflict of interest between the defendants concerned, ii) It must be necessary to decide the conflict in order to give the reliefs which the plaintiff claim, iii) The question between the defendants must have been finally R.S.A.1008/2007. 13 decided and iv) The co-defendants were necessary or proper parties in the former suit. 15. Now, one may refer to the decisions relied on by either side. In the decision reported in **Chandu Lal's case** (supra) it was held as follows: _“The conditions for the application of the doctrine of es judiata as between parties who have been co-defendants in a previous suit are : there must be () a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Burden to prove this lies on the party_ R.S.A.1008/2007. 14 _who alleges that the decision operated as res judicata.”_ In the decision in **Mariamma's case** (supra) it was held as follows: _“The doctrine of res judicata may apply even though the party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest. But if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Burden to prove this lies on the party who alleges that the decision operated as res judicata.”_ In the decision in **Iftikhar Ahmed's case** (supra) it was ## held as follows: _“The rule of res judicata while founded on ancient precedent is dictated by a wisdom and the application of the rule should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. The raison d'etre of the rule is to confer finality on_ R.S.A.1008/2007. 15 _decisions arrived at by competent courts between interested parties after genuine contest._ _It is now settled that for a judgment to operate as res judicata between or among co-defendants it is necessary to establish that (1) there was a conflict of interest between the co-defendants (2) that it was necessary to decide the conflict in order to give relief which the plaintiff claimed; and (3) that the Court actually decided the question. If thus a previous decision can operate as res judicata between the co-defendants under certain conditions, there is no reason why a previous decision should not operate as res judicata between the co-plaintiffs if the same conditions are mutatis mutandis satisfied.”_ ## In the decision in **Kunjulekshmi Amma's case** (supra) it was held as follows: _“For the applicability of the rule of res judicata between co-defendants, there must be a conflict of interest between the co-defendants, the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and a decision of that question between the co-defendants. The_ R.S.A.1008/2007. 16 _doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.”_ In the decision reported in **M/s. Makhija C & E.Pvt. Ltd.'s** case (supra) it was held as follows: _“Where there was a conflict of interest between the two co-respondents in appeal against award of tender to highest bidder and for the purpose of deciding the relief, if any, to be granted to appellant it was necessary for the appellate court to decide whether one of the corespondent i.e. highest bidder was entitled to participate in the tender process and judgment of appellate court though is cryptic shows application of judicial mind to merits of the case, it can be said that all the three pre-requisite conditions to apply principle of res judicata between co-defendants are present and,_ R.S.A.1008/2007. 17 _therefore, judgment of appellate court disposing appellant's appeal would operate as res judicata to bind not only appellant but also corespondents.”_ In the decision reported in **Saroja's case** (supra) it was held as follows: _“Let us, therefore, deal with Conditions (iv) fist which says, “the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.” Learned counsel for the appellant sought to argue that since the former suit was decided ex parte, it could not be said that it was finally heard and decided by the court and, therefore, Condition (iv) was not satisfied and the principle of res judicata could not be applied and accordingly the ex parte decree in the former suit would not operate as res judicata in the subsequent suit. We are unable to agree with this contention of the learned counsel for the appellant. In this case, admittedly, summons was duly served upon Kuppusamy and in spite of such service of summons, Kuppusamy thought it fit not to appear or to contest the suit filed against him._ R.S.A.1008/2007. 18 _Once an ex parte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing._ _It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case._ _In the present case, admittedly, the appellant in her plaint had not made any case of fraud or collusion either against Kuppusamy or against the respondents herein. It is true that when the subsequent suit was filed, the ex parte decree in the former suit had not been passed and, admittedly it was passed during the pendency of the subsequent suit. But then it was open to the appellant to file an amendment of the plaint in the subsequent suit by introducing a case of fraud or collusion and by challenging the ex parte decree_ R.S.A.1008/2007. 19 _decree on the ground of fraud also although the ex parte was passed during the pendency of the subsequent suit. This, however, was not done by her. Therefore, in our view, since the appellant could not make out a case of fraud or collusion challenging the transaction by which she had purchased the suit property from Kuppusamy in the manner indicated above or, since, even the ex parte decree was also not challenged on the ground that Kuppusamy and respondent 3 colluded amongst themselves and out of such collusion. Kuppusamy during the pendency of the former suit sold out the suit property to the appellant, it is not open to the court to hold that the said ex parte decree would not operate as res judicata on the ground that the transaction between Kuppusamy and the appellant in respect of the suit property was a fraudulent one.”_ As far as the decision relied on by the learned counsel for the respondents are concerned, in the decision reported in **State of U.P.'s case** (supra) the decision had gone on to observe that when a suit is dismissed for default, it cannot be treated as a decision on merits. One can have no doubt 20 R.S.A.1008/2007. about the proposition at all. In the decision in Sa **jjadanashin Sayed Md. B.E. Edr.(D) by Lrs.'s case** (supra) the facts necessary to attract the principle of res judicata are highlighted. Learned counsel relied on the following passages in support of his contention: _“Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says that while the general principle is clear, “difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally cognizable and the opinion of Judges seems to have undergone some fluctuations.” By a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well settled, say the above authors, “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.”_ _............. ..............._ _In India, Mulla has referred to similar tests. The learned authors says” A matter in_ R.S.A.1008/2007. 21 _respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating the principal issue and was decided, it would have to be treated as 'directly and substantially' in the issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwar Singh v. Sarwan Singh, AIR 1965 SC 948), Mohd S. Labbai v. Mohd. Hanifa AIR 1965 SC 1569). We are of the view that the above summary in Mulla is a correct statement of the law._ R.S.A.1008/2007. 22 _We have here to advert to another principle of caution referred to by Mulla. “it is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fat that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.”_ 16. There can be no dispute regarding the factors that are to be established in order to constitute res judicata. However the contention raised by the learned counsel for the respondents is that when a party is ex parte to the suit, the decision cannot be accepted as res judicata. In the decisions relied on **Chandu Lal's case** (supra), **Mariamma's** case (supra), and **Saroja's case** (supra) of course there is a word of caution in all these decisions that it must be shown that there was a specific issue involved in R.S.A.1008/2007. 23 the suit and that the party, who remained ex-parte had notice of the same. Bearing the above principles in mind, an attempt shall now be made to see whether the decision in O.S. 194 of 1966 can operate as res judicata in the present suit. 17. Before going into that, one aspect may be noticed. The observation of the courts below that since Gopalan and his mother had remained ex-parte, the decision cannot operate as res judicata cannot be countenanced. While the trial court observed that the decision was rendered behind defendants 1 and 2, who are Gopalan, the husband of the first plaintiff herein and Gopalan's mother, the lower appellate court observed that since they were ex parte, it cannot operate as res judicata. It can be seen that both these grounds are unsustainable. 18. The defendant has produced the judgment in O.S. 194 of 1966. That was a suit for declaration of tile, recovery of possession and for injunction. That related to three acres and 65 cents of land comprised in Sy. No.576/1- R.S.A.1008/2007. 24 2, 576/1-3, 576/1-1-B and 576/1, which according to the plaintiffs belonged to his father and the fifth defendant' tarawad known as Arpookkara tarwad. In the said suit, Theni was the first defendant, Gopalan was the second defendant, Adicha was the third defendant and Lakshmi was the fourth defendant. There were two other defendants also, who were not material in the present context. The definite case put forward was that the property was in the possession of defendants 1 to 4 and he seeks recovery from them. In the said suit, defendants 3 and 4, namely, Adicha and Lakshmi contended that defendants 1 and 2, namely Theni and Gopalan are unnecessary parties as they had nothing to do with regard to the suit properties had become final and also that they were not related to Chadayan Ayyappan. One of the issues raised in the suit was whether defendants 1 and 2 are unnecessary parties to the suit. That issue was issue No.2 in the suit. The issue was answered as follows: R.S.A.1008/2007. 25 _“The defendant's case is that defendants 1 and 2 are not necessary parties to the suit. The plaintiff would allege that Chadayan Ayyappan had another wife by name Theni and through him a son Gopalan was also born. It is an admitted fact that Adicha is the wife of Chadayan Ayyappan and 4[th] defendant Lakshmi is his only daughter. She is examined as D.W.5. She categorically stated that Chadayan Ayyappan had no wife other than her mother. Theni has no relationship with Chadayan Ayyappan and so also Gopalan is not his son. Plaintiff's witnesses's evidence do not show that defendants 1 and 2 had any right over the plaint schedule property or they are related to deceased Chadayan Ayyappan. So I find that defendants 1 and 2 are not necessary party to the suit. Issue found accordingly.”_ A reading of the above finding will clearly show that the issue as to whether Gopalan and Theni had any relationship with Chadayan Ayyappan was gone into in that suit and it was found that there was no relationship between Chadayan Ayyappan and Gopalan. It is true that the first R.S.A.1008/2007. 26 and second defendants in the suit, namely, Theni and Gopalan had remained ex-parte. But it must be noticed that the plaintiff has claimed recovery of possession from the defendants including defendants 1 and 2. In the suit, it was specifically claimed that Theni and Gopalan were wife and son of Chadyan Ayyappan and so also were defendants 3 and 4. Defendants 3 and 4 disputed this claim of the plaintiff and had pointed out that the first and second defendants had nothing to do with the property, nor they were related to Chadayan Ayyappan. It could thus be seen that there was a specific issue regarding this aspect and evidence was adduced regarding the said issue and there was a finding on that issue also. It could not be said that the decision on that issue was unnecessary for giving relief to the plaintiff since the plaintiff had sought for relief against defendants 1 and 2 also. Prima facie therefore it is difficult to accept the view of the courts below that merely because defendants 1 and 2 in O.S. 194 of 1966 had remained ex parte, the decision in the said suit cannot operate as res R.S.A.1008/2007. 27 judicata against them. One may notice that all the four conditions necessary to attract the principle of res judicata against the defendants prima facie are available in the case on hand. 19. The next contention that do not find favour with the courts below is with regard to adverse possession and limitation. 20. It again is a vexed question. It is well settled that as between co-owners, in order to succeed in a plea of adverse possession and limitation proof of ouster is necessary. Unlike in the case of a stranger, in the case of a co-owner, merely because it is shown that the co-owner has not been in enjoyment of the property or not sharing the income, by themselves are not sufficient to attract adverse possession and limitation. It must be shown that there was an open and hostile declaration of title as against the coowner and they were excluded from enjoyment and sharing of income. 28 R.S.A.1008/2007. 21. Learned counsel for the respondents had relied on the decision reported in **Govindammal v. R. Perumal Chettiar** ((2006) 11 SCC 600), wherein it was held as follows: _“To prove ouster and adverse possession against a co-owner the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed the law of limitation; (ii) dealing by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the coowner in possession. There may be cases, wherein, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no_ R.S.A.1008/2007. 29 _hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer and what is adverse to the interest of the claimant. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. In order to succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of 12 years. There must be a hostile open possession, denial and repudiation of the rights of other co-owners, for which one ha to lead definite evidence, and this denial or repudiation must be brought home to the co-owners and how that can be proved will depend on facts of each case.”_ 22. One can have no quarrel with the above proposition. But in the case on hand, it may be remembered that in O.S. 194 of 1966 evidenced by Ext.B1 judgment Adicha and Lakshmy had set up a plea that the first and second defendants had set up no manner of right over the suit property and they were in exclusive possession and R.S.A.1008/2007. 30 enjoyment of the same. May be that the first and second defendants remained ex-parte. But that may not be a reason to hold that there is no plea of adverse possession and assertion of hostile title. It is also significant to notice that in the earlier suit the court had raised an issue regarding necessity to have defendants 1 and 2 on the party array and it was found that in the light of the plea taken by defendants 3 and 4 and the evidence adduced by them, defendants 1 and 2 were unnecessary parties to the suit. Obviously that decision was rendered on the basis that Gopalan and Theni had nothing to do with Chadayan Ayyappan and the property. Apart from the above fact, the court also must have felt that it was unnecessary to have them on the party array because they have nothing to do with the property also. 23. At least from 1966 therefore the defendant in this suit and her mother had been asserting exclusive title and possession over the suit property. There is overwhelming evidence in this case to show that the R.S.A.1008/2007. 31 defendant has been treating the property as her own and dealing with it as such atleast from 1966 onwards. The defendant has been paying property tax in respect of the property and it is also necessary to remember that she has a definite case that she had put up a building in the year 1974. The evidence produced by the defendant shows that she had been paying building tax and there is a building in the property. She had applied to the Rubber Board for subsidy for planting rubber in the property and she had been receiving communications from the Rubber Board. She has also produced document received from the Tahsildar, Village Officer etc to show that she is in exclusive possession of the property. It is significant to notice that by Ext.B11 she had mortgaged the property also. There is sufficient evidence in the case to show that she has been treating the property as her own excluding all others. It is seen that both the courts below have not adverted to these aspects and had simply condemned the plea of adverse possession and limitation. It is true that mere non-enjoyment or non-sharing of income R.S.A.1008/2007. 32 by themselves are not sufficient to constitute ouster. But in the case on hand, it is not only shown that there is non-enjoyment or non-sharing of income, but it is much more than that. As already noticed, there is an open and hostile assertion of title in O.S. 194 of 1966 and in the said suit it was specifically contended that it was not necessary to have defendants 1 and 2 in the party array because they were neither in possession of the suit property nor were they related to Chadayan Ayyappan. The plea was accepted and the court below held that they were unnecessary parties to the said suit. It is significant to notice that except for the oral testimony of P.Ws. 1 and 2 there is absolutely no evidence at all to show that the plaintiffs had ever been in possession and enjoyment or had exercised any manner of right over the suit property. This aspect of the case also has not been considered by the courts below. 24. The courts below were more concerned with the marriage between Theni and Chadayan Ayyappan and R.S.A.1008/2007. 33 most of the observations centers round the question whether that marriage was legal or the marriage with Adicha was legal. First of all that has to be gone into only if that issue did arise for consideration in the earlier suit, O.S. 194 of 1966, evidenced by Ext. B1 judgment. It is quite unfortunate to note that even after the decision in O.S. 194 of 1966 was produced before the court below, the appellate court goes on to hold that that the defendant is an illegitimate child. That is going too far. It could not be said that the decision in O.S. 194 of 1966 could have no binding effect on the plaintiffs in this case. It could not have been so lightly taken as has been done by the courts below. 25. It therefore follows that there has not been a proper consideration of the issues involved in the suit and the matter requires reconsideration. It is felt that it is sufficient to direct the lower appellate court to reconsider the issues that are involved in the suit especially regarding res judicata and the plea of adverse possession and limitation. R.S.A.1008/2007. 34 In the result, this appeal is allowed, the impugned judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 8.9.2010. The court below may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate within six months from the date of appearance of the parties. Office is directed to return the records forthwith. **P. BHAVADASAN, JUDGE** sb.