Proof of ouster is necessary for adverse possession against a co-sharer.

P.K.Deb, J.

1. This appeal has been preferred against the judgment and decree dated 31-1-19 86 passed by the 8th Additional District Judge, Munghyer, in Title Appeal No. 44 of 1981 reversing the judgment and decree dated 26-9-1981 passed by the Munsif-I, Munghyer, in Title Suit No. 38/6 of 1975-80.

2. At the admission stage under Order XLI, Rule 11 of the Code of Civil Procedure, the respondents have been noticed and heard both the parties on merit also. The plaintiff-respondents filed the suit for declaration of title and also for recovery of possession in respect of the suit land appertaining to plot No. 121, khata No. 55, Touzi No. 4884 of Mouza Ramchandrapur P.S. Jamalpur within the district of Munghyer as described in Schedule-II of the plaint. The area of the suit land is 17 decimals towards north. The admitted position remains that one Gohan Sab was the original owner of the whole of the suit plot measuring 34 decimals. He left behind two sons Sonu and Chhathu. Sonu left the place and settled at Midnapur in the State of West Bengal and Chhathu remained in the place and was managing the property. Chhathu died leaving behind two sons Panchu and Rameshwar. The defendants are the heirs of Ranchu and Rameshwar and also the purchasers from Chhathus heir in the year 1968. According to the plaintiffs, Sonu died leaving behind two sons Mahadeo and Sukhdeo, Sukhdeo died issueless and Mahadeo died leaving his wife Sharda Devi and one son Jagdish. The plaintiffs are the purchasers from Jagdish and Sharda Devi. According to the plaintiffs, Chhathus heirs and heirs of Sonu had privately partitioned their entire property and in the suit plot Rameshwar Sao and Panchu Sao got the allotment towards south measuring half of the suit plot, namely, 17 decimals and rest of the 17 decimals has fallen in the share of Sharda Devi and Jagdish towards north and the same has been purchased with specific boundary by the plaintiffs. According to the plaintiffs Sonus share have been duly mutated in the name of Sharda Devi and Jagdish Sao before Anchal Adhikari and their shares have been purchased by the plaintiffs by sale-deed dated 1-11-1968 and the plaintiffs names had also been mutated before the Anchal office. But, as the defendants demolished the southern ridge which was the demarcating line between the plaintiffs and defendants, the plaintiffs made a complaint on 19-2-1971 before the police and a proceeding was started under Sec. 144 of the Code of Criminal Procedure which was ultimately converted to a proceeding under Section 145 of the Code of Criminal Procedure but on adjudication between the parties possessions have been declared in favour of the defendants and as such, the defendants had dispossessed the plaintiffs being armed with the order of the proceeding under Sec. 145 of the Code of Criminal Procedure and hence the present suit. The relief claimed in the suit is for declaration of tide over the suit land and for recovery of possession. There is also alternative prayer to the effect that if there was no partition between the heirs of Sonu Sao and Chhathu Sao, the Court may be pleased to partition the properties and a preliminary decree of partition may be passed for half share over the suit plot,

3. The defendants-appellants contested the suit by filing written statement. The usual pleas such as non-maintainability of the suit, that the suit being barred by the principle of waiver, estoppel and acquisence, etc. etc. have been taken. The genealogy as given by the plaintiffs have been admitted but according to the defendants, Sonu Sao in the early 40 had left the village and settled at Kharagpur in the district of Midnapur in West Bengal and died there. It was further contended that Sonu Sao was not married and Chhathu Sao remained in possession over the entire properties not only by way of survivorship but also when Sonu Sao left for West Bengal had delivered possession in favour of his brother Chhothu Sao and during this long p