Partition rights continue despite abatement; exclusive co-owner possession is not adverse without clear ouster.

A prior partition suit that abated under Order XXII Rule 9 CPC did not extinguish the continuing right to seek partition of joint property, so a fresh partition action was maintainable. The house was treated as joint family property, relying on defendants' earlier admission and surrounding circumstances. Exclusive possession by one co-owner was held not to become adverse without clear proof of ouster or a hostile assertion of exclusive title, so adverse possession and limitation failed. On that basis, the plaintiff was found entitled to the half share awarded and the decree for partition was upheld.

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Issues: (i) whether the suit for partition was barred by the dismissal of an earlier partition suit as abated under Order XXII Rule 9 of the Code of Civil Procedure, 1908; (ii) whether the suit house was joint family property; (iii) whether the defendants had perfected title by adverse possession or the suit was barred by limitation; and (iv) whether the plaintiff was entitled to half share in the property.

Issue (i): whether the suit for partition was barred by the dismissal of an earlier partition suit as abated under Order XXII Rule 9 of the Code of Civil Procedure, 1908.

Analysis: The right to seek partition was treated as a continuing right incidental to ownership of joint property. A previous partition suit having abated did not extinguish that right, because the cause of action for partition recurs so long as the property remains joint. A fresh suit could therefore be brought when partition was again sought.

Conclusion: The suit was not barred under Order XXII Rule 9 of the Code of Civil Procedure, 1908.

Issue (ii): whether the suit house was joint family property.

Analysis: Although direct evidence of acquisition by the common ancestor was not adduced, the record contained an unqualified admission by the defendants in earlier proceedings that the house was joint family property. That admission, coupled with the surrounding circumstances, was sufficient to support the finding on title.

Conclusion: The house was held to be joint family property.

Issue (iii): whether the defendants had perfected title by adverse possession or the suit was barred by limitation.

Analysis: In the case of co-owners, possession of one is ordinarily possession on behalf of all. Mere exclusive possession for long years does not become adverse unless there is clear proof of ouster or conduct showing an intention to hold the property under a hostile title and to exclude the other co-owners. The defendants failed to show any denial of the plaintiff's title or any open assertion of exclusive hostile ownership. The finding that ouster was not established was therefore upheld.

Conclusion: Adverse possession was not proved and the suit was not barred by limitation.

Issue (iv): whether the plaintiff was entitled to half share in the property.

Analysis: The plaintiff's entitlement was supported on the footing of joint family ownership. Even on the alternative assumption that one coparcener's interest had to be treated separately, the plaintiff remained entitled to the share awarded by the appellate court, including by succession under the Hindu Succession Act, 1956.

Conclusion: The plaintiff was entitled to half share in the suit property.

Final Conclusion: The decree for partition in favour of the plaintiff was upheld and the second appeal was dismissed with costs.

Ratio Decidendi: A co-owner's possession is not adverse merely because it is exclusive; adverse possession against another co-owner requires clear proof of ouster or a hostile assertion of exclusive title, and a prior abated partition suit does not bar a fresh partition action while the property remains joint.

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