( 1 ) THIS appeal filed by original defendant No. 1 who died during the pendency of the suit and whose heirs viz. defendants Nos. 1 (1) to 1 (4) were brought on record is directed against an order passed by the lower appellate court in regular civil appeal No. 121 of 1976 of the court of the learned District Judge Bulsar at Navsari dismissing the appellants appeal and confirming the decree of the trial court in respondent No. 1s suit being regular civil suit No. 6 of 1972 which was decreed by the learned Civil Judge (Junior Division at Gandevi by his judgment and order dated 25th September 1976 declaring that the plaintiff and deceased defendant No. 1 each had one half share in the suit houses and appointing a Commissioner for making partition and ordering the drawing of a preliminary decree accordingly. . . . . . . . . . . . . . . . . . .

( 2 ) MR. D. D. Vyas the learned Advocate appearing for the appellants was not in a position to substantiate the case of the defendants with regard to ownership of the suit properties by virtue of the alleged oral gift by deceased Chhiba in favour of defendant No. 1. As rightly held by the courts below no such immovable property of the value of Rs. 100. 00 and upwards can be transferred by an oral gift. Both the courts have also on evidence given a concurrent finding that there was no material on record to justify a conclusion that any such oral gift was made by Chhiba in favour of deceased Bai Kunver and in a second appeal therefore this court would be most reluctant to disturb that finding.

( 3 ) BUT Mr. Vyas contends that in view of the fact that admittedly from prior to the death of the deceased defendant No. 1 was in possession of the suit properties to the exclusion of the plaintiff the defendants acquired an interest in the properties by adverse possession. Now in order to succeed on a plea of adverse possession the defendants have to establish that she (defendant No. 1) claimed a title hostile to the real owner and in case of coowners ouster will have to be proved. After the death of the deceased the property according to Hindu law of succes sion would devolve on the plaintiff and defendant No. 1 as the heirs of the deceased as the third daughter of the deceased viz. Bai Somi bad predeceased Chhiba and therefore the heirs who survived deceased Chbiba in the year 1943 when he died were the plaintiff and defendant No. 1. Defendant No. 1 was staying at that time with the deceased and her continuance in possession therefore unless there is some overtract constituting open ouster of the other coowner would not ripen into any title on her by way of adverse possession.

( 4 ) MR. Vyas then pointed out that by an application dated 10th April 1953 Ex. 59 the first defendant applied to the city survey officer to have the properties mutated in her name and that thereafter as Ex. 60 shows the properties were shown in the name of defendant No. 1 in place of deceased Chhiba. But if one looks at Ex. 59 what is stated therein is that her father in whose name the properties were standing at that time had died about 13 years before she made that application and that there was no other heir except the applicant that is deceased defendant No. 1 to her father Chhiba and that the properties were in her possession under a right of heirship and in that property except the applicant nobody else had any right title or interest and that the property therefore should be mutated in her name by virtue of the right of inheritence. This in no case in my opinion would amount to an ouster. This amounts to a misrepresentation to the knowledge of the first defendant to the effect that she was the only heir and legal representative of her deceased father who had died 13 years ago and that therefore by virtue of the fact that she was the only heir and legal representative surviving the deceased she was entitled to get the properties mutated in her name. Now this was absolutely a false statement in view of th