CS/78/2025 of Mr. J. Sekar Vs Mr. S.P.N. Sathyamurthy on 30 September 2026

Judgment

This suit has been filed seeking for the following reliefs:

(i) Preliminary decree for partition and separate possession of the suit schedule mentioned property and allot half share to the plaintiff herein.

(ii) . For the grant of Permanent Injunction restraining the defendants, their men, agents, servants or anyone claiming either under or through them from in any manner, alienating or encumbering the suit property.

(iii) . For appointing an advocate commissioner to divide the suit schedule mentioned properties by meats and bounds and allot half share to the plaintiff herein.

2. The case of the plaintiff is that the suit schedule property originally belonged to Ayyasamy Nadar. The said Ayyasamy Nadar settled the ground floor of the building, together with 50% undivided share in the land comprised in the suit schedule property, in favour of his eldest son, Jayatharan. He also settled the first floor of the building, together with the remaining 50% undivided share in the land comprised in the suit schedule property, in favour of his youngest son, Balaganesan.

3. Balaganesan, for the purpose of availing credit facilities by his firm, namely, Dinakar Trading Company, mortgaged the first floor of the building, together with the 50% undivided share in the land settled in his favour, with the Indian Overseas Bank. The Loan Account of Balaganesan became NPA and as such the Indian Overseas Bank had initiated action under SARFAESI Act.

4. Balaganesan and the heirs of Jayatharan sold entire schedule property including the first floor of the building and 50% undivided share in the schedule Property mortgaged by Balaganesan with Indian Overseas Bank to one Mr.Subbash under the deed of sale dated 27.04.2005 registered as document No. 1121 of 2005.

5. The Indian Overseas Bank brought the mortgaged property, namely, the first floor of the building together with 50% undivided share in the land comprised in the suit schedule property, which had been mortgaged by Balaganesan to sale. Aggrieved by the same, the said Subash preferred various appeals before different forums, all of which ended in failure.

6. The plaintiff, as auction purchaser, had purchased the said the first floor of the building and 50% undivided share in the schedule Property mortgaged by Balaganesan under the certificate of sale dated 31.01.2008 issued by the said Indian Overseas Bank.

7. Pursuant to the sale certificate dated 31.01.2008 issued by the Indian Overseas Bank, the said Mr. Subash appointed one Venkateswaran as his power agent under a Power of Attorney dated 18.02.2008. Acting in such capacity, the said Venkateswaran, as the power agent of Mr. Subash, sold the entire suit schedule property, including the first floor of the building together with 50% undivided share in the land comprised therein, in favour of the first defendant and the deceased second defendant under a Sale Deed dated 20.02.2008. These two documents, namely, the execution of the Power of Attorney in favour of S. Venkateswaran and the execution of the Sale Deed dated 20.02.2008, came to be executed only after the dismissal of the SLP preferred by the said Subash and after the issuance of the Sale Certificate in favour of the plaintiff.

8. Suspecting foul play on the part of the defendants, when the plaintiff inspected the suit schedule property, it was found that the access to the first floor had been completely closed, the door leading to the first floor had been fully shut, and the entire entrance had been plastered. Hence, the plaintiff instituted C.S. No.1134 of 2008 before this Hon'ble Court. The said suit was decreed in favour of the plaintiff, and the appeals preferred by M/s. Dinakar Trading Company and the other defendants were also dismissed.

9. In view of the fact that the defendants have blocked the entire access to the first floor and have also modified the entire first floor into a mezzanine floor, thereby preventing the Plaintiff from having access thereto, the Plaintiff could not take possession of the said first floor together with the 50% undivided share and interest in the land appurtenant thereto. The Plaintiff further submits that he has now reliably learnt that the suit property is being exclusively enjoyed by the first defendant. However, since the Sale Deed has been executed and registered in favour of the defendants, the second defendant has also been impleaded as a party to the suit.

10. The Plaintiff further submits that the entire land remains undivided and has not been divided by metes and bounds. Further, as the access to the entire first-floor superstructure has been completely blocked and the first floor has been modified into a mezzanine floor, the Plaintiff has been prevented from enjoying the portion of the suit property to which he is entitled. In the circumstances, it has become just and necessary for the Plaintiff to seek partition of the entire larger extent of the suit property and allotment of one-half share therein to the Plaintiff. Since the defendants have not come forward for an amicable settlement, the Plaintiff is constrained to institute the present suit.

11. The 1st defendant opposed the present suit contending that the cause of action for seeking the relief of partition and separate possession had arisen long prior to the institution of the earlier suit in C.S. No.1134 of 2008. It was submitted that the Plaintiff had failed to seek the relief of partition and separate possession in the earlier suit, despite having the opportunity to do so, and, having omitted to claim such relief therein, the Plaintiff is not entitled to seek the same relief in the present suit. The 1st defendant further contended that the present suit had been instituted after a lapse of 18 years from the alleged date of ouster in the year 2008 and, therefore, the Plaintiff is not entitled to seek the relief of partition.

12. Upon perusing the pleadings, documents and hearing the submissions made by the respective counsel, this Court, on 08.01.2026, framed the following issues for trial. “1. Whether the plaintiff and the defendants are in joint possession over the suit property?

2. Whether the plaintiff is entitled to partition of 1/2 share over the suit property?

3. Whether the plaintiff is entitled to decree for permanent injunction from alienating or encumbering the suit property as prayed for in the suit?

4. Whether the court fee paid by the plaintiff is correct?

5. To what other reliefs, the plaintiff is entitled to?

13. On the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked four documents. The 1st defendant examined himself as D.W.1 and marked two documents.

14. Issue Nos. 1 to 3 14.1 The suit has been instituted by the plaintiff seeking partition and separate possession of his half undivided share in the suit property and for consequential permanent injunction and other reliefs.

14.2. The case of the plaintiff is that, the property comprises the building together with the land appurtenant thereto and the plaintiff acquired the 1st floor and 50% undivided share in the land pursuant to the sale certificate dated 31.01.2008 issued in his favour by the Indian Overseas Bank. The plaintiff states that, despite the acquisition of the aforesaid interest, he was not permitted to enter or enjoy the first floor and the defendants have continued to remain in possession of the property. It is the further case of the plaintiff that the transactions and documents under which the defendants asserted title were challenged by him in C.S. No.1134 of 2008. The said suit was adjudicated by this Court and judgment and decree came to be passed on 04.10.2019. Thereafter, the plaintiff caused the sale certificate dated 31.01.2008 to be registered on 14.01.2020 under document No.112 of 2020 before the Sub Registrar, Mylapore.

14.3. The plaintiff further relies upon the proceedings in O.A. Nos.22 and 25 of 2020 which ultimately came to be disposed of by the Hon’ble Division Bench on 21.03.2025. According to the plaintiff, not withstanding the above adjudication and subsequent proceedings, the property has not been divided by metes and bounds and his 50% share has not been separately allotted or delivered to him. The plaintiff has therefore, instituted the present suit seeking partition and separate possession.

14.4. The 1st defendant contests the suit principally on the ground of limitation. According to the 1st defendant, the plaintiff admittedly knew as early as in 2008 that he was not in possession of the first floor. The plaintiff was allegedly prevented from entering the property and was thereby excluded from possession. It is therefore contended that the plaintiff’s cause of action arose in 2008 and that, having instituted the present suit only after several years, the claim is barred under Article 65 of the Limitation Act, 1963.

14.5. It is further contended that the plaintiff ought to have sought partition in the earlier proceedings in C.S.No.1134 of 2008 itself and that the present suit is barred by the principles underlying Order II Rule 2 of CPC. The defendants also dispute the plaintiff’s entitlement to claim exclusive possession of any portion of the property.

14.6. Therefore, the principle foundation of the plaintiff’s claim is the sale certificate dated 31.01.2008. The plaintiff relies upon the said document as the source of his title to the extent of 50% undivided share in the suit property. The subsequent registration of the sale certificate on 14.01.2020 is also borne out from the materials placed before this Court. The 1st defendant’s challenge to the plaintiff’s entitlement cannot be considered in isolation from the earlier proceedings in C.S. No.1134 of 2008. The plaintiff had, as early as in 2008, approached this Court and asserted his right in respect of the very property. The dispute was therefore not one in which the plaintiff remained silent for years and suddenly asserted a stale claim. On the contrary, the record discloses continuous assertion of his claim and pursuit of the remedies available to him. The defendants have not established any subsequent conveyance, relinquishment, release, partition or other legally enforceable instrument by which the plaintiff’s half share stood extinguished.

14.7. The more substantial objection raised by the defendants is that, the plaintiff was excluded from possession in 2008 and that the suit filed thereafter is barred by limitation. Article 65 of the Limitation Act prescribes a period of 12 years for a suit for possession based on title, commencing when the possession of the defendant becomes adverse to the plaintiff. The question, therefore, is not merely when the plaintiff was physically prevented from entering the property. The material question is whether the defendants have established legal ouster and adverse possession against the plaintiff. The law relating to co owners is well settled. Possession by one co owner is ordinarily treated as possession on behalf of all co owners. Mere exclusive enjoyment or physical occupation does not automatically amount to ouster. Ouster requires a clear and unequivocal hostile assertion of title, accompanied by open and continuous exclusion of the other co owner and knowledge of such hostile assertion.

14.8. The Hon’ble Supreme Court has reiterated that, in the case of co owners, the plea of ouster requires proof of hostile animus, long and uninterrupted possession and open exercise of exclusive ownership to the knowledge of the other co owner. In the present case, PW1 has admitted that he was not permitted to enter the first floor in 2008. That admission establishes physical exclusion. However, it does not, standing alone, establish legal ouster.

The surrounding circumstances are significant. The plaintiff did not accept the defendants’ assertion of exclusive title. On the contrary, he instituted C.S. No.1134 of 2008 and challenged the transactions and documents under which the defendants asserted their rights. Thus, from 2008 itself, the plaintiff was asserting a competing claim to the property. The institution and prosecution of the earlier proceedings are inconsistent with an inference that the plaintiff had abandoned his rights or acquiesced in the defendants’ hostile title. The defendants have not established, by cogent evidence, that there was a clear and unequivocal declaration excluding the plaintiff from ownership, followed by uninterrupted adverse possession for the full statutory period. The mere fact that the defendants remained in physical possession of the first floor from 2008 cannot therefore be treated as the starting point of adverse possession against the plaintiff. The defendants have not established any legally sufficient act of ouster which would have extinguished the plaintiff’s title. The subsequent course of litigation is equally relevant. The title dispute was adjudicated in C.S. No.1134 of 2008 only on 04.10.2019. The sale certificate was thereafter registered on 14.01.2020 and the proceedings in O.A. Nos. 22 and 25 of 2022 continued thereafter and culminated in the Division Bench Order dated 21.03.2025. These facts demonstrate that the plaintiff continued to assert his rights and that the parties’ competing claims did not remain dormant. Therefore, the plea of limitation must fail.

14.9. The next contention is that the plaintiff ought to have sought partition in C.S. No.1134 of 2008. Order II Rule 2 CPC is intended to prevent a plaintiff from splitting a single cause of action and subsequently instituting another suit for a relief which was available on the same cause of action and which was omitted without leave of the Court. The bar, however, is not attracted merely because the earlier and subsequent proceedings concern the same property. The defendants must establish that, the earlier suit and the present suit arise from the same cause of action; the relief now claimed was available on that cause of action; and the plaintiff omitted to claim such relief without obtaining the requisite leave.

14.10. In the present case, C.S. No.1134 of 2008 was instituted in the context of the plaintiff’s challenge to the transactions and documents under which the defendants asserted title. The present suit is for partition and a separate possession of plaintiff’s half share in the suit property on the basis of the title asserted by him. The nature and the basis of the reliefs are therefore not shown to be identical. More importantly, the defendants have not established, by producing the pleadings and establishing their identity in terms of Order II Rule 2 CPC, that the relief of partition in the present form necessarily arose from the very same cause of action upon which C.S. NO.1134 of 2008 was founded. The mere identity of the property is insufficient. Therefore, the plea under Order II Rule 2 CPC is ought to be rejected.

14.11. The plaintiff has also sought consequential protection against alienation or creation of third party rights prejudicial to his share. Once the Court declares that the plaintiff is entitled to 50% undivided share, the defendants cannot deal with the plaintiff’s share as though they were the exclusive owners of the entire property. The defendants, are therefore liable to be restrained from alienating, encumbering or otherwise creating third party rights in respect of plaintiff’s 50% undivided share.

14.12. The learned counsel for the plaintiff has relied upon the judgment of the Hon’ble Supreme Court in Kattukandi Edathil Krishnan and Ors vs. Kattukandi Edathil Valsan and others reported in 2022 SCC Online SC737 , in which the Hon’ble Supreme Court has specifically directed that, after passing a preliminary decree for partition, the trial court should proceed with the matter under Order XX Rule 18 CPC and should not require the successful party to institute a separate final decree proceeding. The object is to ensure that the suit proceeds continuously until actual relief is secured and the final decree is drawn. This Court shall accordingly retain the matter for further proceedings under Order XX Rule 18 CPC.

15. In the result, a preliminary decree for partition and separate possession of the plaintiff’s 50% share in the suit property is passed. The defendants, their men, agents, servants or any person claiming through or under them are restrained from alienating or encumbering the plaintiff’s 50% undivided share or creating any third party interest prejudicial to the plaintiff’s right. Consequently, connected Original Application is closed.

16. Mr. S. Viswanathan, Advocate (No.235, New Additional Law Chambers, High Court Buildings, Chennai 600 104, Mobile No.9500144789) is appointed as Advocate Commissioner to inspect the property, measure the same with the assistance of Taluk Surveyor, if necessary, divide the property by metes and bounds and submit a report by 30.10.2026. The remuneration of the Advocate Commissioner is fixed at Rs.30,000/- initially, apart from actual expenses towards the surveyor and other incidental expenses, payable by the plaintiff.

17. Call on 30.10.2026. 30-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No

BGA

K.GOVINDARAJAN THILAKAVADI J. BGA CS No. 78 of 2025 and OA NO. 395 OF 2025 30-09-2026