D. P. HIREMATH, J. ( 1 ) THE appellant herein was the plaintiff in the original suit which he has filed against his mother defendant No. 1 and alienees of some of the suit properties. The plaintiff was adopted by defendant No. 1 on 21-1-1941. The adoptive family is possessed of substantial number of agricultural lands and houses. Some of the properties viz. S. Nos. 365/4b, 394/4b, 405/4b, 557/4b and part of 363/4b were sold away by the plaintiff, whereas defendant No. 1 leased the same to Kalloleppa. Though at one stage it was the case of defendant No. 1 that V. P. C. 557 and 600/1 (B) and (C) was mortgaged in the year 1946 to defendant No. 7, later defendant No. 1 herself did not support this mortgage. Similarly, sale in favour of defendants 3 to 5 of V. P. C. Nos. 557 and 600 was not adhered to by her. V. P. C. 559 and four lands have now remained with the family. Thus, by alienation by the plaintiff of the properties aforesaid and lease of the same properties by the defendant No. 1, these properties are no longer in possession of the family of plaintiff and defendant No. 1. Kallolappa the purchaser from the plaintiff died in the year 1946 leaving behind his widow defendant No. 4 and his sons defendants 2 and 3. When these transactions took place defendant No. 1 challenged the adoption of plaintiff in O. S. 8/48 on the file of the Prl. Munsiff at Gokak making a prayer for declaration that the plaintiff was not the duly adopted son and for permanent injunction restraining him from interfering with her peaceful possession of the rest of the suit properties which were not subject matter of transfers. The suit was dismissed in the trial Court and the I Appeal as well as the II Appeal to the High Court of Bombay preferred by the defendant No. 1 failed. Later, she also created lease in favour of defendant No. 8 in respect of other lands. They are described as serial Nos. A, B, C, D, E in para 1 (a) of the schedule. Later, she also created lease in favour of defendant No. 8 in respect of other lands. They are described as serial Nos. A, B, C, D, E in para 1 (a) of the schedule. That being the position, the plaintiff filed O. S. 93/56 in the same Court on 30-6-56 for possession of northern portion of S. No. 363/4b measuring 35 guntas in the house at para 1 (a) on the plea that being a sole surviving coparcener he was entitled to possession thereof. However, the properties which he had alienated to Kalloleppa were not included in that suit. However, he succeeded only partially in that suit in as much as it was held that the lease of northern 35 Ga. in S. No. 363/4b effected by defendant No. 1 in favour of defendant No. 8 was valid only to the extent of her share. The plaintiff was however, directed to seek his remedy by recovering joint possession along with her or claiming partition. In the meanwhile, defend, ants 2 to 4 the L. Rs. of Kalloleppa filed O. S. 93/56 for possession of the properties sold to Kalloleppa, but the suit came to be dismissed. Sale however, was held to be valid. Defendant No. 1 in her written statement challenged the alienation made by plaintiff. She however, did not support the mortgage and gift of the respective properties created by her. She further pleaded that the defendant is the lessee of all the suit properties and he has been in actual possession of the same. The main and substantial contention of her was that she was in actual possession for 12 years adversely to the interest of the plaintiff and, therefore, the plaintiff cannot now lay any claim of title to these properties. In view of the decision in O. S. 93/56 the suit is hit by principles of res judicata as also Order 2, R. 2, C. P. C. Defendant No. 8 contended that he has been the tenant of the land leased to him by D-1 and hence his possession cannot be disturbed. The trial Court having considered the issues, decreed the plaintiff's suit as follows :-"it is hereby declared that he is entitled to half share in the suit properties. The partition of agricultural lands shall be made by the Deputy Commissioner or any Gazetted subordinate deputed by him in this behalf. The trial Court having considered the issues, decreed the plaintiff's suit as follows :-"it is hereby declared that he is entitled to half share in the suit properties. The partition of agricultural lands shall be made by the Deputy Commissioner or any Gazetted subordinate deputed by him in this behalf. The partition of the residential houses shall be made by the Commissioner appointed on an application to be made by the plaintiff. The partition of the lands in possession of deft. No. 8 Shivalingappa in the capacity of a tenant shall be made subject to his tenancy rights. An enquiry is directed as regards the future mesne profits under Order 20, Rule 12 (1) C of the C. P. C. "so directing, a preliminary decree was directed to be drawn. ( 2 ) IN the I Appeal preferred by defendants 1 and 8, the Appellate Court upheld the contentions of the appellants that the suit is barred under Or. II, R. 2, C. P. C. and that defendant No. 1 appellant No. 1 had perfected her title by adverse possession. Consequently, allowing the appeal suit came to be dismissed. ( 3 ) IN this appeal preferred by the original plaintiff, the following substantial questions of law have been set down for determination;1. Whether the appellate Court was right in holding that adverse possession was established in this case ? 2. Whether the appellate Court was right in holding that the suit was barred by res judicata and by doctrine of relinquishment under Rule 2 of Order II, C. P. C. ? ( 4 ) TAKING the second contention first, Order II, R. 2 requires that suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. However, the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. If the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. Under R. 3 however, a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. If the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. Under R. 3 however, a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. And if he omits except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. The plea of Or. II, R. 2 is urged in view of the decision in O. S. 93/56. It is not disputed that no pleadings were filed by the contending parties viz. defendant 1 and defendant No. 8, in order to contend successfully that the relief now claimed in the instant suit is based on the same cause of action. Therefore, what the trial Court observed in this behalf in para 12 of its Judgement based on the material before it assumes importance. It says : "it is not satisfactorily shown by defendant 1 Gourawwa as to how the present suit could be barred by principles of res judicata. The matter which was directly and substantially in issues in two suits are different. The former suit was brought by the plaintiff for possession of certain properties belonging to the family on the averment that he is the adoptive son and the properties mentioned in that suit were not in his possession. That suit proceeded on the assumption that the plaintiff was the sole surviving coparcener of the family of the deceased Sadappa. . . . . The present suit, however, is for a general partition of all the family properties and possession of the same from the defendants. The matter which was directly and substantially in issue in the former suit is apparently different from the one in this suit. So also it cannot be contended that the plaintiff would have demanded a general partition of all the family properties in that suit and the present suit is barred by the principles of constructive res judicata. It is only after finding was given in original suit No. 93/56, the plaintiff could think of filing suit for general partition of all the properties and possession of his share. It is only after finding was given in original suit No. 93/56, the plaintiff could think of filing suit for general partition of all the properties and possession of his share. " what is relevant for the purpose of considering res judicata under S. 11, C. P. C. is also relevant for consideration of the plea under O. II, R. 2, C. P. C. It has been the case of the plaintiff that O. S. 93/65 was filed by him on a different cause of action and the cause of action for the present suit is different. Soon after his suit O. S. 93/56 was disposed of, he came forward with the present suit, the scope and ambit of the present suit is much wider in as much as all the properties of the family are the subject matter of the suit and general partition in all of them is sought. The Supreme Court in the case of Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 , clearly held that in order that a plea of a bar under O. 2, R. 2 (3), C. P. C. should succeed the defendant who raises the plea must make out that the second suit was in respect of the same cause of action as that on which the previous suit was based; that in respect of that cause of action the plaintiff was entitled to more than one relief; that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that a plea of a bar under O. 2, R. 2, C. P. C. can be established only if the previous suit and thereby proves to the Court the identity of the causes of action in the two suits. The cause of action in the previous suit would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. Therefore, on the very first part of the objection raised in this behalf by the respondents' counsel, that the appellant did not produce pleadings in order to substantiate the bar of O. 2, R. 2, C. P. C. has sufficient force. In spite of there being no plaint in the previous suit on record, the trial Court appears to have derived support for its observation from the Judgement in O. S. 93/56 to find that the earlier suit of the plaintiff was on the basis that he is the sole surviving coparcener. It was on that plea that he claimed for actual and absolute possession of the two suit properties. When the Court found that he is not entitled to absolute possession of these properties finding that his adoptive mother defendant No. 1 becomes co-owner after his adoption, the only alternative left to him was to file a suit for partition which the plaintiff has now done. ( 5 ) IN a later decision this Court in the case of Shivaram T. v. T. Chinnanna, (1987 (1) Kar LJ 296), only reiterated what is required to be proved to uphold such a plea. The learned single Judge observed that the cause of action in a suit for possession is entirely different from the cause of action that would arise in the case of recovery of rent. That however, does not take the case any further. The learned single Judge observed that the cause of action in a suit for possession is entirely different from the cause of action that would arise in the case of recovery of rent. That however, does not take the case any further. In the case of Venkategowda v. Shivanegowda, (1990 (1) Ker LJ 134), it has been held that where the previous suit for declaration of title and possession was dismissed on ground that the suit property had been mortgaged, the subsequent suit for redemption is not barred under O. 2, R. 2. The view that where the pleadings are not filed or produced it is sufficient to negative the contention has been reiterated in this case as well relying on the decision of the Supreme Court in the case of Gurbax Singh v. Bhoorelal (mentioned supra ). This being the legal position and the fact of pleadings not having been filed going unchallenged, the I Appellate Court dealing on this paint at para 10 of its Judgement no doubt referred to the decision of the Bombay High Court in the case of Mohamad Khalil Khan v. Mahabub @ Mian, (1951 BLR 9), but failed to note the principle laid down in that case as well. What is required to be seen is whether, the claim in the new suit is in fact founded upon, the cause of action distinct from that which was the foundation for the former suit. It also pointed out that evidence for the present suit as well as for the former suit is one and the same and hence the bar is attracted. It is difficult to accept the reasoning of the I Appellate Court in as much as it appears to have proceeded on assumption that the cause of action in both the suits is the same, ignoring the vital distinction that in the earlier suit the claim of the plaintiff even inferentially was based on his contention that he was the sole surviving caparcener and thus entitled to the absolute ownership of the suit properties therein. If he comes down from the position of he being entitled as an absolute owner to all the properties and reconciles himself to the verdict given that he is entitled only to half share along with his adoptive mother, then by no stretch of imagination it could be said that the cause of action in both the suits is one and the same. Similarly that the evidence may be same in both the suits may not be of considerable importance so as to brush aside the principal requirement of the causes of action in both the suits being the same. The I Appellate Court completely ignored want of evidence in this behalf by way of production of pleadings. As to what exactly was the claim of the plaintiff in the earlier suit. Absence of evidence by itself is sufficient to negative such a plea. In my view the I Appellate Court went wrong in upsetting this finding of the trial Court that the suit is not barred either under Or. 2, R. 2 or S. 11, C. P. C. ( 6 ) THE next substantial question is one of adverse possession on which also the I Appellate Court has disagreed with the trial Court. The respondents' counsel has at the outset invited the attention of this Court to the fact that prior to 1956 the adoptive mother could have succeeded to the properties of her husband as a limited owner and on her death they could have reverted back to the next reversioner viz. the adopted son. Therefore, a limited owner cannot be considered as enjoying the properties as an absolute owner notoriously bearing a hostile animus towards the rights of the reversioner. Reliance has been placed on a decision of the Bombay High Court in the case of Maganlalji Gordhanlalji v. Purshottamlalji Wagheshalalji, AIR 1949 Bom 80. The learned single Judge who rendered the Judgement pointed out that where a Hindu widow enters into possession of the estate of the deceased husband in her capacity as limited heir she can hold any part of it adversely to third parties and therefore in the interests of the real reversioner or reversioners. Entering upon the estate in that limited capacity and holding such limited estate, she cannot enlarge it against the reversioner and hold it so as to make it part of her "stridhan". Entering upon the estate in that limited capacity and holding such limited estate, she cannot enlarge it against the reversioner and hold it so as to make it part of her "stridhan". Referring to the facts of the case in which a Hindu had died leaving a widow and a son, widow took possession of a part of her husband's estate in her character as Hindu widow, the Court pronounced that she could not prescribe for an absolute estate against the son. Undisputedly the present position of plaintiff and defendant No. 1 is that of co-owners. The Supreme Court in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , with regard to adverse possession claimed by a co-owner observed thus :"it is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is settled rule of law that as being co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. "it must be said that while the trial Court applied these well established principles with regard to adverse possession by a co-owner, the I Appellate Court was swayed away only by the possession of defendant No. 1 who claimed all the suit properties on the death of her husband. It forgot to take note of a very material fact viz. that all through the properties have been under litigation in one way or the other. It forgot to take note of a very material fact viz. that all through the properties have been under litigation in one way or the other. Admittedly, after disposal of O. S. 93/56 the plaintiff bas come forward with the suit for general partition before the twelve years prescribed period expired. Even otherwise, it may be possible to say that mere possession of a co-owner without anything more however long it may be, cannot by itself constitute an adverse possession against the other co-owner. It is pertinent to note that there is no evidence of oster whatsoever. If the plaintiff has been in possession of the properties which have remained with the family, she must be deemed to have been in possession on her behalf as well as on behalf of her co-owner plaintiff. It is also pertinent to note that even the plaintiff has exercised his rights of ownership when he alienated as many as 5 properties in favour of Kalloleppa. The defendant No. 1 on her part has created some leases which are held to be valid leases in favour of Kalloleppa. What all the I Appellate Court said in this behalf is as follows in para 15 of its judgement :"the dismissal of the suit of the plaintiff and his alienees does not create any fresh cause of action or the fresh point of limitation for institution of the present suit. The finding in the former two suits that the plaintiffs in those suits were entitled for partition and possession of half share in those properties does not create any fresh cause of action for computing the limitation for the dismissal of those suits. The limitation for possession of the suit properties commences from the adverse claim made by the deft. 1 in the year 1946 or 1948. Therefore, on the date of the institution of the present suit the deft. 1 had perfected her title to the suit properties by adverse possession and the remedy of the plaintiff for possession of the joint family properties or for partition and possession of his share had become time barred. " ( 7 ) IN making this observation the I Appellate Court ignored the fundamental distinction between a suit for possession and a suit for partition. " ( 7 ) IN making this observation the I Appellate Court ignored the fundamental distinction between a suit for possession and a suit for partition. If it was a suit for exclusive possession, the reasons assigned by the I Appellate Court to say that since 1946 he has been kept out of possession could have had some relevance though the same could have been decided in the light of the conduct of the parties throughout. In a suit for partition, the joint interest of a party entitled to his share in the properties which are subject matter of the suit cannot be taken away unless strong evidence is given to show that the co-owner was ousted or kept out of possession with a hostile animus with the other co-owner to expropriate all the properties to herself or himself to the exclusion of the other co-owner. What the I Appellate Court missed note of is the fact that throughout, the plaintiff has been asserting his rights as a co-owner and he has even alienated many of the properties involved in the suit, though the alienations cannot bind the interest of the other co-owner viz. D-1. Even in this regard the trial Court's approach is quite in accordance with the established principles of law. ( 8 ) WHILE discussing issue No. 5 in para 11 of its Judgement, the trial Court has referred to the previous suits, one of which was taken to the High Court of Bombay in the Second Appeal. It pointed out that suit O. S. 93/56 was within 12 years from the date of alienation and in this suit he prayed for possession of remaining 35 gs. of S. No. 363/48 and residential house which was in her possession. It also pointed out that the circumstances clearly indicated that the plaintiff has been continuously asserting his right to ownership in these properties. The I Appellate Court also ignored the position which has clearly pointed out by the trial Court that defendant No. 1 was only a limited owner until the Hindu Succession Act came into force. It then says :"until the coming into force of the Hindu Succession Act, it cannot be said that she could perfect her absolute title to the suit properties even assuming that she held them adversely to the interest of the plaintiff. It then says :"until the coming into force of the Hindu Succession Act, it cannot be said that she could perfect her absolute title to the suit properties even assuming that she held them adversely to the interest of the plaintiff. She could at the most perfect her limited property until the year 1956 when Hindu Succession Act came into force. It is needless to say that the Hindu Succession Act came into force on 17/06/1956. This suit has been filed by the plaintiff on 1-4-1968, that is within 12 years of the coming into force of the Hindu Succession Act. In the circumstances of this case wherein the plaintiff is the adoptive son of the defendant-1 who claims title to the suit property by virtue of the adverse possession and in view of the material placed on record from which it can be collected that her possession was not exclusive and uninterrupted for the prescribed period and in view of the fact that the suit has been filed by the plaintiff within 12 years of the coming into force of the Hindu Succession Act when defendant-1 Gourawwe could have acquired absolute estate in the properties of her deceased husband it cannot be said that she has perfected her title to the said properties by virtue of the principles of adverse possession. . . . . . . . There has been a finding given in a previous proceeding that the plaintiff is the validly adopted son of defendant No. 1. The prayer made by defendant 1 in that suit for perpetual injunction to restrain him was referred. That means that the plaintiff is the adopted son of deft-1 and resides with her jointly. No ouster has been proved by defendant-1 to show that the plaintiff is not entitled to the possession of the suit properties. "these observations of the trial Court are based on proper appreciation of the material placed before the trial Court as well as by the proper application of law relating to adverse possession or ouster. In my view, therefore, I Appellate Court was not justified in reversing this finding of the trial Court. On both the substantial questions of law, my answer is against the appellant and in favour of the respondent. In my view, therefore, I Appellate Court was not justified in reversing this finding of the trial Court. On both the substantial questions of law, my answer is against the appellant and in favour of the respondent. ( 9 ) ALLOWING the appeal, Judgement and Decree of the I Appellate Court are set aside and those of the trial Court are restored. The appellant shall get his costs in this Court as well as in the I Appellate Court. Appeal allowed. --- *** --- .