As between co-owners, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

H. S. Thakur, J.—This Letters Patent Appeal is directed against the decree and judgment of the learned Single Judge dated November 9f 1973, who affirmed the decree and judgment passed by the Jearned Additional District Judge.

2. A few facts relevant to decide this appeal may be stated. The land in dispute is one-fourth share in Khasra Nos. 35, 38, 2/2, 3, 4, 53/2, 57,58/2,39, 45 and 52 measuring 43 bighas and 2 biswas situated in village Bamta. In order to understand this case, it is necessary to set out the genealogical table which gives the relationship of the parties and, to make certain observations: Balku Kahna Jalam Jagta Kalia Bhola (Mst. Phini widow) Masadi (died issueless) Lobhi Deft. 6) Negi Deft. 5) Gopal (Deft. 4) Jiwanoo (died issueless). Sardaroo Budhoo (Deft. 1) Jagarnath (Deft. 2) Anantia (Deft, 3)

3. Scot. Phini deceased made a gift of her one-fourth share in the above land in favour of Krishanoo Ram plaintiff The plaintiff applied to the revenue authorities for the partition of his one-fourth share. S/Shri Budhu, Jagarnathu and Anantia (defendants No. 1 to 3) opposed the application. Consequently, the plaintiff was directed by an order dated 31-1-1962 to get his title determined from a Civil Court. The plaintiff accordingly filed the suit for a declaration to the effect that he is the owner of one-fourth share of the land in dispute and is entitled to separate his share by partition.

4. The defendants No. 1 to 3 resisted the suit. Numerous contentions were raised by them but were not pressed except for the contention that Smt. Phini the donor had ceased to be the owner of one-fourth share of which she had made a gift in favour of the plaintiff, due to the adverse possession of defendants 1 to

3. The trial court, however, dismissed the suit of the plaintiff The plaintiff preferred an appeal before the learned District Judge and the learned Additional District Judge accepted the appeal and decreed the suit of the plaintiff holding that Smt. Phini continued to be a co-sharer in the land in dispute when she made the gift in favour of the plaintiff.

5. Aggrieved by the said decree and judgment passed by the learned Additional District Judge, the defendants preferred a second appeal before the High Court. The learned Single Judge, however, dismissed the appeal of the defendants on November 9, 1973, and affirmed the decree and judgment passed by the first appellate court. The learned Single Judge after considering the documentary and other evidence on record, came to the conclusion that the defendants had not perfected their title to the property in dispute by adverse possession.

6. Aggrieved by the judgment passed by the learned Single Judge, affirming the decree and judgment passed by the first appellate court, the defendants have filed this Letters Patent Appeal

7. As pointed out earlier above, the only contention that has been pressed before us by Mr. Chhabil Dass, learned counsel for the defendants, is that since Smt Phini the donor had lost her title in the property in dispute and the defendants had perfected their title by adverse possession, the plaintiff had no right to claim partition in the said property. The learned counsel has stressed that no doubt Smt Phini, the donor, was a co-owner of the property in suit but the defendants had been in the exclusive possession of the said property in village Bamta and had perfect ed their title by adverse possession. It is emphasised that ouster from possession and benefits from the land, amount to adverse possession. It is also pointed out that the exclusive possession of the defendants was hostile to the donor Smt. Phini and, the gift made by her in favour of the plaintiff was ineffective. The learned counsel has referred to certain decisions in support of his contention. He has referred to a decision in Muhammad Hassan v. Sohara and others, AIR 1924 Lah 389. In this judgment, while placing reliance on a previous judgment, the learned Judge has observed that the