Adverse possession against a co-sharer requires actual ouster, and non-payment of rent by one co-sharer sister does not amount to ouster.

BHASKAR BHATTACHARYA, J. :- This first appeal is at the instance of the defendants in a suit for partition and is directed against the judgment and decree dated 22nd January, 1998 passed by the Civil Judge (Senior Division) Ghatal, Midnapore, in Title Suit No. 56 of 1995, thereby declaring that the plaintiff has 1/3rd share in 'ka' and 'kha' scheduled property and the defendants have 2/3rd share therein with a direction upon the parties to amicably partition the property within five months from the date of decree.

2. It appears that the plaintiff, a sister filed a suit for partition against her brothers claiming 1/3rd share on the allegation that she inherited the property through her father.

3. The suit was contested by the defendants by filing written statement thereby contending that the title of the plaintiff in the property had been extinguished by adverse possession of the defendants. It was further contended that the property being family dwelling house and the plaintiff being a female heir of the Class-1, the suit for partition was not maintainable at her instance.

4. At the time of hearing of the suit, the son of the plaintiff gave evidence in support of her claim while four witnesses including one of the defendants deposed in opposing the prayer of the plaintiff.

5. The learned Trial Judge, on consideration of the materials on record, came to the conclusion that the defendants had failed to prove adverse possession against the plaintiff, an admitted co-sharer, and thus, decreed the suit in preliminary form as mentioned above.

6. Being dissatisfied, the defendants have come up with the present first appeal.

7. Mr. Banerjee, the learned counsel appearing on behalf of the appellant, at the first instance, tried to convince us that from the materials on record it has been established that the plaintiff had no possession in the property and as such, the learned Trial Judge ought to have dismissed the suit on the ground that without praying for recovery of possession, the suit was not maintainable in the form of one for partition.

8. Secondly, Mr. Banerjee contends that the suit property being a Bastu, in view of Section 23 of the Hindu Succession Act, the plaintiff was not entitled to maintain a suit for partition so long the male heirs decided not to partition among them.

9. After hearing the learned counsel for the parties and after going through the materials on record we find that it has been admitted by the DW-1, the defendant, that the plaintiff inherited the property through her father. It, was however, alleged that the plaintiff is not in possession of the property for more than 20 years and as such, her title to the property has been extinguished by adverse possession of the defendants.

10. We find that in the Revisional Record of Right as also in the current L. R. Record, the name of the plaintiff is still appearing as co sharer. The son of the plaintiff asserted that the rent was paid by the plaintiff through her brother, the defendant but such allegation has been denied by the defendant.

11. We find that the learned Trial Judge on consideration of the materials on record rightly concluded that merely because a married sister generally resided in her matrimonial house, for that reason, it could not be said that her title to the property had been extinguished for want of actual possession.

12. It is now settled law that in order to claim adverse possession against the co-sharer, it is necessary to establish the actual ouster of the co-sharer of the property, inasmuch as, in the ordinary course, the possession of one co-sharer should be in law deemed to be the possession of the absent co-sharer. In this connection, we may profitably refer to the following observations of the Apex Court in the case of Darshan Singh v. Gujjar Singh reported in AIR 2002 SC 606 (Para 9) :

"In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he po