The filing of a partition suit coupled with a claim for possession, as was done in the present case, and such suit is decreed, arrests the running of time against a co-owner in adverse possession.

( 1 ) THIS appeal is directed against an appellate decree passed in a suit for declaration of title and recovery of possession.

( 2 ) ONE Rahamatulla Naskar had two sons, Kamaruddi and Pijoruddi. On a partition between the two brothers, Pijoruddi got the properties now in dispute.

( 3 ) PIJORUDDI had two sons, Taimuddi and Nasaruddi and a daughter Achhiman Bibi. Nasaruddi died during the life time of his father leaving a widow Meherjan and a son Abdur Rahim Naskar. Pijoruddi died in 1338 B. S.

( 4 ) ABDUR Rahim Naskar is the plaintiff respondent in the present appeal.

( 5 ) AT one time Abdur Rahim Naskar set up a story that in or about 1332 B. S. Pijoruddi had made an oral Heba in respect of six annas share of his property in favour of him (Abdur Rahim Naskar), the motive for the Heba being love and affection for Abdur Rahim, who became disentitled to inherit Pijoruddi on account of the death of his father during Pijo-ruddi's life time. Six years after the Heba Pijoruddi died, and the plaintiff continued to enjoy and possess Pijorudoi's estate jointly with his uncle Taimuddi, living all the while with in joint mess. Joint possession was, however, found to be inconvenient, and in Falgun, 1341 B. S. , there was a partition of the properties among the plaintiff, his uncle and his aunt Achhiman Bibi, and the plaintiff got separate allotment of properties, which he began to possess separately.

( 6 ) THE story of Heba in favour of Abdur Rahim was found to be untrue in a suit for partition filed by Achhiman Bibi.

( 7 ) IN the present suit Abdur Rahim claims six annas share, in the estate left by Pijoruddi, not upon the footing of any Heba, as hitherto before claimed, but on the basis of adverse possession of the land in suit since Falgun, 1341 B. S. , when, as alleged, a partition of properties was effected.

( 8 ) THE plaintiff's claim was contested by defendant No. 1 Abdul Jabbar, son of Taimuddi, and defendant No. 3, Achhiman Bibi. The defence, in substance, was that the claim was learned by principles of res judicata and estoppel. It was further urged that the plaintiff had never obtained any property under any Heba and had never been in possession of the disputed properties in any capacity. The story of partition in Falgun, 1341 B. S. was challenged as untrue, and so also his story of adverse possession.

( 9 ) THE learned Subordinate Judge who tried the suit held that the plaintiff had no title in the land in dispute and had not also acquired any title by adverse possession. In that view of the matter he dismissed the suit.

( 10 ) THE plaintiff appealed and the Court of appeal below reversed the judgment of the Trial Court and declared the title of the plaintiff to six annas share in the property in suit. There was also a decree for recovery of possession made in favour of the plaintiff by eviction of the defendants. The reasons, which actuated the learned Additional District Judge to reverse the decree of the Trial Court, will appear from the following quotations from his judgment:" (a) But since the alleged partition between the plaintiff and Taimuddi in Falgoon 1341 B. S. when the plaintiff began to possess separately there can be no such factum. The plaintiff was then possessing in bis own right claiming the property to be his own. It is no doubt true that at that time the plaintiff was possessing in assertion of his own right, title and interest as the lawful owner on the basis of the Heba made by his grandfather. But even if this title was found defective in future the possession was adverse against the rightful owners from the very beginning, namely, Falgoon 1341 B. S. "" (b ). there can be no legal bar to the plaintiff obtaining a decree by adverse possession if the Court believes the story to be true. Now it appears from the judgment obtained by defendant No. 3, that defendant No. 3 was never in actual possession of any part of the suit lands. Her case is that she used to get the usufruct fro