Judgment 1. The plaintiffs in a suit for partition are the appellants. The suit was originally filed by the first plaintiff Aleema Umma. It was contended by the original first plaintiff that the plaint schedule property originally belonged to his brother Moosa and he assigned the property to the plaintiff. Two suits were filed as O.S. 277/1977 and O.S. 258/1977 by Aleema Umma against deceased Alathel Muhammed who is the husband of the first respondent. Muhammed mentioned therein who was the defendant in those suits filed a suit against the deceased first plaintiff Aleema Umma as O.S. 339/1977. All those three suits were tried together. The two suits filed by the first plaintiff Aleema Umma were dismissed holding that the first plaintiff could not prove her exclusive possession of the property claimed by her. Similarly, O.S.339/1977 was also dismissed holding that Muhammed the defendant therein could not prove his exclusive right over the property. 2. Ext.A3 is the common judgment passed in the earlier three suits, O.S. Nos. 258/77, 277/77 and 339/1977. As stated earlier, the two suits filed by Aleema Umma mentioned above were dismissed holding that she could not prove exclusive possession over the suit property. Similarly, the third suit filed by Muhammed contending that he was in exclusive possession of the property was also dismissed holding that he could not prove exclusive possession of the property. Aleema Umma filed two appeals challenging the dismissal of her two suits. Those two appeals were also dismissed. No appeal was filed by Muhammed as against the judgment and decree in O.S. 339/1977 and hence, the judgment and decree passed in that suit became final. Challenging the common judgment passed against the judgment and decree in O.S. 277/1977 and O.S. 258/197, Second Appeals were filed as S.A. 317/1983 and 330/1983. Ext. A6 is the common judgment passed by this Court in those two Second Appeals. In Ext.A6 it was observed by this Court: “The two courts have concurrently found that the plaintiff could not prove her exclusive possession over the plaint schedule property. The court held that the building as well as the appurtenant land are in the joint possession of the plaintiff and defendants. That is a finding of fact reached by the two courts. No substantial question of law arises in this matter. 5. O.S. No. 339/1977 was only a suit for injunction. The court held that the building as well as the appurtenant land are in the joint possession of the plaintiff and defendants. That is a finding of fact reached by the two courts. No substantial question of law arises in this matter. 5. O.S. No. 339/1977 was only a suit for injunction. Injunction was refused as the parties were in joint possession. I find no reason to interfere with the judgment of the lower appellate court and the two appeals are dismissed, without costs”. 3. During the pendency of the present suit the original plaintiff died. Her assignees were brought on record as supplemental plaintiffs. It was held by the trial Court that simply because there was an observation made by this Court in Ext.A6 judgment that the parties can pursue their remedy for partition, it cannot be said that the plaintiffs were held to have proved their title to the property. Since no document could be produced by the plaintiff to show the title of the deceased first plaintiff, the suit was dismissed. The appellate court concurred with that view. 4. The following substantial questions of law have been re- framed in this case:- (i) Whether a suit for partition can be dismissed solely on the ground that the plaintiff has not proved her proprietary title? (ii) Can not partition and separate possession be claimed based on the joint possessory right exercised by the plaintiff and defendant? (iii) Are not the appellants entitled to get a preliminary decree for partition? 5. The learned counsel for the supplemental plaintiffs/appellants would submit that the courts below did not advert to the findings and observations made by this Court in Extr.A3 judgment which was the common judgment passed in the three suits which were tried earlier. Since the dismissal of the suit, O.S. 339/1977 was not challenged at all by the plaintiff therein who is the first defendant in the present suit, the first defendant is estopped from contending that he has absolute or exclusive right over the property. There can be no doubt that since the dismissal of the suit in O.S. 339/1977 was not challenged it is not open to the first defendant to contend that he has got absolute or exclusive right over the suit property. There can be no doubt that since the dismissal of the suit in O.S. 339/1977 was not challenged it is not open to the first defendant to contend that he has got absolute or exclusive right over the suit property. But, according to the learned counsel for the respondent, that will not relieve the plaintiffs of their burden to prove their title to the property. Simply because an observation was made by this Court that the parties can pursue their remedy by way of partition that will not confer on them title to the property and unless the title to the property is proved in the manner required by law the plaintiffs are not entitled to a preliminary decree for partition as sought for by them, the respondents contended. 6. Ext.A3 is the common judgment referred to above. There the case set by Aleema Umma (the first plaintiff in the two suits O.S.258/1977 and O.S. 277/1977) was that the plaint schedule property originally belonged to the plaintiff's brother deceased Moosa; he had 'pattam' right over the property; the plaintiff was residing in the said property and subsequently Moosa assigned the 'pattom' right (the lease hold right) to the plaintiff as per a registered assignment deed dated 20-01-1976. But it was held in Ext.A3 and in the appeals filed against them that deceased Aleema Umma the plaintiff in the two suits could not prove that Moosa had any right over the property and as such the assignment deed will not confer on Aleema Umma any right over the property based on that assignment deed. In Ext.A3 Aleema Umma contended that the property was obtained on oral lease by her brother deceased Moosa from the jenmi on 15th Kanni 1120. That oral lease could not be substantiated by Aleema Umma. As such, it cannot be said that Aleema Umma had obtained right over the property on the strength of Ext.A1 assignment deed. The case set up by the first defendant in that suit was that the suit property was obtained by his father Cheriyakutty from the Jenmi in the year 1075 (ME). It was found that even the identity of the property claimed by the first defendant therein was entirely different. It was also found that the first defendant failed to prove the lease set up by him. It was found that even the identity of the property claimed by the first defendant therein was entirely different. It was also found that the first defendant failed to prove the lease set up by him. Therefore, the contention that the suit property was obtained on lease by the father of the first defendant also fell to the ground. That finding entered in O.S.339/1977 and the consequential dismissal of that suit became final. Hence the first defendant therein is estopped from contending otherwise. 7. The learned Sr. counsel appearing for the respondents would submit that though the suit (O.S. No. 339/1977) filed by the first defendant Mohammed was dismissed and was not appealed against that does not mean that the plaintiffs can get a preliminary decree for partition unless they establish their title to the property. 8. It is a case where both parties could not prove their absolute title to the property. Both parties could not prove the oral lease set up by them in their respective suits. Therefore, what remains is only the limited right i.e. possessory right. 9. The suit property admittedly belonged in jenm to Kunnatur Kovilakam. Though the oral lease set up by the plaintiff and 1st defendant could not be proved, the findings in Ext.A3 would clearly show that the suit property was in the joint possession and enjoyment of the first plaintiff and the first defendant. Though the oral lease set up by the first plaintiff could not be proved that alone is not a reason to non-suit the appellant since the definite finding in Ext.A3 judgment was that the first plaintiff (Aleema Umma) and the first defendant (Muhammed) were in joint possession of the property. That was a finding entered in O.S. No. 339/1977 also. The decree and judgment in that suit was not appealed against and hence that finding became final. As such the first defendant cannot contend otherwise. 10. The other question germane for consideration is whether in the light of that finding regarding joint possession, the deceased first plaintiff could seek partition of the plaint schedule property. 11. Hence, the present suit was filed by Aleema Umma for partition of the suit property contending that she and the defendant Muhammed were/are in joint possession of the property and so she is entitled to half share in the property. 12. 11. Hence, the present suit was filed by Aleema Umma for partition of the suit property contending that she and the defendant Muhammed were/are in joint possession of the property and so she is entitled to half share in the property. 12. In this connection, it is also pointed out that the first defendant in Ext.A3 suit did not challenge Exts.A5 and A6 series, the receipts for payment of land revenue and building tax marked therein. There is evidence to show that the deceased first plaintiff and the deceased first defendant were occupying the very same house and they were in joint possession of the appurtenant land as well. That would suggest that Aleema Umma (deceased first plaintiff) and deceased first defendant (Muhammed) were in joint possession of the property. There is also evidence to show that the first defendant therein did not challenge the acceptability of Ext.A5 series, the revenue receipts produced by the first plaintiff herein. Though the trial court expressed a doubt as to how those receipts can be relied upon to hold that those receipts pertain to the suit property there was a clear and unambiguous admission made by (the first defendant who was examined as DW1 therein) that all those receipts produced by the first plaintiff relate to the plaint schedule property. Therefore, that would clearly indicate that the first plaintiff could prove her possession over those suit property. The finding in the earlier suit is that 1st defendant and Aleema Umma were in joint possession of the property. The finding that the first plaintiff and the first defendant were in joint possession of the property has become final. Hence, the first defendant cannot resist the claim for partition simply by saying that the proprietary title could not be established. Possessory right is available for partition and can be partitioned unless the parties could prove better title suggesting impartibility of the property. The contention that simply because the plaintiffs paid basic tax or building tax in respect of the property, no right can be claimed by the plaintiffs cannot be accepted in the factual scenario obtained in this case. Payment of land revenue and building tax was accepted as acts of possession, though the party cannot claim exclusive right based on such payment of tax. Payment of land revenue and building tax was accepted as acts of possession, though the party cannot claim exclusive right based on such payment of tax. There was a definite finding in the earlier suit that the first plaintiff and the first defendant were in joint possession of the property. Therefore, unless it is established that the first defendant had a better right to totally non-suit the first plaintiff, the possession of the first defendant over the suit property can only be treated as joint possession of the suit property along with the first plaintiff. If viewed in that line, the payment of the land revenue and the building tax by the first plaintiff cannot be simply brushed aside from consideration; rather it has to be given due weight especially when no such document could be produced by the first defendant or other defendants to negative the claim made by the first plaintiff. 13. It could be found that the first plaintiff and the first defendant were residing in the very same building situated in the suit property at least from 1976 onwards. If that be so, the first defendant cannot contend that the first plaintiff had absolutely no right over the property. No explanation whatsoever could be offered on behalf of the first defendant. 14. It is true that the supplemental plaintiffs could not prove that the deceased first plaintiff had obtained leasehold right over the suit property. But the observations and findings rendered by the trial court in Ext.A3 suit would clearly show that the property was jointly held and possessed by the deceased first defendant and first plaintiff. Since that finding has become final, the first defendant is estopped from contending otherwise. 15. It is argued by Sri. Rammohan, the learned counsel appearing for the appellants that a person having such interest like possession must be allowed to enforce those rights against all the world except those who have a better title or better right than himself. Possession is evidence of ownership and is itself the foundation of a right to possession. It is a good title against all the world except the person who can show a better title. Here, it is not a case where the appellants trespassed in to the property and took possession for a short period. Possession is evidence of ownership and is itself the foundation of a right to possession. It is a good title against all the world except the person who can show a better title. Here, it is not a case where the appellants trespassed in to the property and took possession for a short period. The consistent case throughout is that the appellant was in possession of the property along with the respondent. There is a definite finding by all the courts including this Court in the earlier round of litigation, that Aleema Umma and Muhammed were in joint possession of the property. The respondent did not even challenge that finding entered against him in his suit by filing appeal, challenging the dismissal of that suit. He stood by that decision. Therefore, the respondent cannot be heard to contend that the appellant is not in joint possession of the property. Both sides could not trace their title. That does not mean that the person in possession or joint possession should be deprived of his right. It was held by a Division Bench of this Court in Kuttan Narayanan v. Thomman Mathai - 1966 KLT 1 . “Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership.” It was also held in the very same decision: “A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself”. It was observed by Salmond on Jurisprudence, Eleventh Edition, page 345: “In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself” 16. It is submitted by Sri. Rammohan that even though there has been change in the approach with regard to the right of possession exercised by a trespasser, so far as the case on hand is concerned, the appellant did not come into possession by way of trespass but claiming right under the earlier owners or persons in possession of the property. That apart, in view of the definite finding entered by the courts in the earlier round of litigation the respondent cannot contend that the appellant is not in joint possession of the property. That apart, in view of the definite finding entered by the courts in the earlier round of litigation the respondent cannot contend that the appellant is not in joint possession of the property. If so, a person having joint possession as held in the earlier case, should not be deprived of the right to get separate possession equivalent to his moiety. 17. In primitive Society absolute ownership was the rule. Limited ownership came into existence in later times. Although the definitions of ownership are more appropriate to absolute ownership, limited owners are nevertheless regarded as owners. All co-owners have equal rights and co-ordinate interest in the property. Their shares may be either fixed or indeterminate. Each coowner is in theory interested in every infinitesimal portion of the subject matter and each has the right irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with others. The trust of co-ownership is co-ordinate interest. If there is no joint possession of the parties in respect of the entire property, there is no co-ownership. Applying the test of equal rights of enjoyment and possession of the entire property the claim for partition made by the deceased first plaintiff to get her share in the property is well justified. Joint property is the generic name given to any property held by co-owners. Any property held by tenants in common is sometimes called common property in order to distinguish the same from other forms of joint property. Therefore, the word ownership or co-ownership does not confine to absolute ownership but also to limited rights like possessory right as the one which arises for consideration in the case on hand. 18. Another Division Bench of this Court in Rev. Father K.C. Alexander v. Nair Service Society Ltd. – 1966 KLT 333 it was held: A person in possession, even if he be a trespasser, can on the strength of his possessory title, get back possession from any person (except the true owner) who dispossesses him, if he brings a suit within 12 years period. 19. The aforesaid decision was affirmed by the Hon'ble Supreme Court in Nair Service Society Ltd. v. Ref. Father K.C. Alexander - 1968 KLT 182 . Therefore, Sri. 19. The aforesaid decision was affirmed by the Hon'ble Supreme Court in Nair Service Society Ltd. v. Ref. Father K.C. Alexander - 1968 KLT 182 . Therefore, Sri. Rammohan, the learned counsel for the appellants would submit that if possession by itself confers title against all but the true owner, it must follow that his interest; namely possession, has to be protected. When the other person in joint possession tries to disturb his possession then certainly his remedy is to sue for partition and allotment of his share in the possessory title. In such cases, the question whether the plaintiff has proved proprietary title to the property or not does not assume much relevance so long as the defendant/respondent does not prove better title. The defendant was held to be only having joint possession along with the plaintiff. Since that being the concluded finding in the earlier case, the defendant cannot now contend that the plaintiff should prove proprietary title so as to enable her to get partition of the property. If anybody claiming better tittle comes forward, the decree for partition passed may not bind such a person who claims better title. But so far as the defendant is concerned , he cannot contend that the plaintiff should prove proprietary title so as to get a decree for partition. What is sought for is only the partition of the possessory right and not the proprietary title or ownership of the property. Possession by itself is a substantive right recognized by law. It has got all the legal incidents attached to it. 20. Possessory title is good title against all though not against the true owner. Therefore, possessory title is heritable, divisible and transferable. Possessory title is distinct and different from proprietary title. Hence, the finding entered by the courts below that since the plaintiff could not prove title to the property, she is not entitled to get partition of the property is bereft of any merit. The partition was sought in respect of the possessory right exercised by Aaleema Umma. That will hold good against all, though it may not hold against the true owner. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. The partition was sought in respect of the possessory right exercised by Aaleema Umma. That will hold good against all, though it may not hold against the true owner. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. Going by the findings entered earlier, it was clear that the property was in the joint possession of Aleema Umma and Muhammed, the defendant. The decisions cited supra were followed by another Bench of this Court in Philip and Others v. State of Kerala & Others - ( 1987 (1) KLT 213 and in Krishnankutty Nair v. Subramanian ( 1988 (1) KLT 886 ). 21. It is argued by Sri. Rammohan that person in peaceful possession is entitled to maintain such possession against all, though not against the true owner. When his possession is tried to be disturbed then he can certainly sue for necessary reliefs. Since in this case the other person who tries to disturb his possession is a person in joint possession, the only remedy available to the plaintiff is to sue for partition and for getting separate allotment of that portion of the property which the plaintiff will be entitled to get as her share. Possession is a substantive right which has been recognized by law. It is trite law that if a person is in settled possession of land, even though without title, he cannot be ejected by another person who has no title. So far as the case on hand is concerned, it is the proved fact that Aleema Umma, the original plaintiff and Muhammed the original defendant were in join possession of the property. Hence, a preliminary decree for partition can certainly be passed in respect of that possessory right enjoyed by them. The courts below proceeded on the footing that since the plaintiff has not proved Aleema's proprietary title to the property, partition cannot be claimed. The courts below proceeded on a wrong premise that the partition is sought based on title. The claim was purely based on possessory title based on the joint possession recognized by the courts in the earlier round of litigation. True, title cannot be conferred by judgment. But the appellants (persons claiming under Aleema Umma) relied upon Ext.A6 and the prior judgments to show that Aleema Umma's right of joint possession was recognized by the courts. 22. The claim was purely based on possessory title based on the joint possession recognized by the courts in the earlier round of litigation. True, title cannot be conferred by judgment. But the appellants (persons claiming under Aleema Umma) relied upon Ext.A6 and the prior judgments to show that Aleema Umma's right of joint possession was recognized by the courts. 22. The principle in In pari delicto potior est condition possidentis (or defendentis) means that where both parties are equally at fault, the defendant holds the stronger ground; the condition of the defendant is more favourable. That principle has no application to the facts of this case. Here, it is indisputably clear that both parties were in joint possession of the property and so the defendant cannot steel a march on the plaintiff. Not only that both of them are not in wrongful possession of the property. Their possession is lawful. Therefore, the contention that the condition of the possessor is more favourable also cannot be sustained. The defendant is not in a better position so as to allow him to retain possession to the exclusion of the appellants because his possession was only joint possession along with the appellants. 23. It is vehemently argued by the learned counsel appearing for the respondents that even if it is accepted that there is a finding of the court in the earlier round of litigation that the plaintiff and defendant therein were in joint possession of the property, there is no finding as to the proportion of share they were having in respect of the property. It was not a case of Aleema Umma and Muhammed claiming right as the legal heirs of their father. Therefore, the share of Muhammed and Aleema cannot be 2 : 1. 24. No specific claim has been made by the respondents stating that the share (share of Mohammed) should be more than one-half. In the absence of any other specific claim or any legal right projected by the respondents it can only be held that Aleema Umma and Muhammed were in joint possession of the property having equal right over the same. If so, a preliminary has to be passed in that line. In the result, this Second Appeal is allowed. In the absence of any other specific claim or any legal right projected by the respondents it can only be held that Aleema Umma and Muhammed were in joint possession of the property having equal right over the same. If so, a preliminary has to be passed in that line. In the result, this Second Appeal is allowed. A preliminary decree for partition is passed directing division of the suit property into two equal shares and to allot one such share to the supplemental plaintiffs claiming under deceased Aleema Umma and the other share to the defendants claiming under deceased Muhammed. The claim for equity if any shall be considered in the Final Decree Application.