JUDGMENT.- Defendants 1, 3 and 4 in O.S. No. 135 of 1968 on the file of the Court of the District Munsif of Villupuram who succeeded before the trial Court but lost before the first appellate Court are the appellants herein. They are the legal representatives of one Duraisami Kounder while the plaintiffs are the legal representatives of Rangasami Kounder. Rangasami Kounder and Duraisami Kounder were brothers, Duraisami Kounder being the elder. They had a sister by name Sowbagiammal. The suit property was purchased in her name under Ex. B-5 dated 27th September, 1937. It has been found and it is not disputed that Sowbagiammal died on 30th July, 1946 leaving no issue, having become a widow at a young age. Equally, there is no controversy that on the death of Sowbagiammal leaving no issue, the two brothers Rangasamy Kounder and Duraisami Kounder would be her heirs entitled to get the property in equal moieties. When the plaintiffs instituted the suit for partition and separate possession of their half share in the suit property, various defences were raised by the appellants herein which included the defence that they had acquired title to the entire property by adverse possession and ouster. Certain other defences were raised before the Courts below, namely, that the suit property itself was purchased by Duraisami Kounder benami in the name of Sowbagiammal and the property belonged to Duraisami Kounder and, therefore, there was no question of Rangasami Kounder succeeding to the said property. But the same was found against and was not persisted in before me.

2. The trial Court accepted the plea of the appellants that they had acquired title to the entirety of the property by adverse possession and dismissed the suit instituted by the respondents herein. On appeal preferred by the respondents, the learned II Additional Subordinate Judge held that the appellants had not made out their claim that they had acquired title to the entire suit property by adverse possession and, therefore, decreed the suit for partition institute by the respondents herein. It is as against this judgment and decree that the present second appeal has been filed.

3. I may mention immediately that the only point that was urged before me is in relation to the finding of the learned Subordinate Judge that the appellants had not established ouster and, therefore, I am considering only that point in the present second appeal. It has been well-settled as to what would constitute ouster as between co-sharers.

4. The Supreme Court has pointed out in P. Lakshmi Reddy v. L. Lakshmi Reddy1:

“The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of all the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus on his part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs 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. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession”.

5. This Court in Godaavari Lakshminarasamma v. Godavari Rama Brahmam and others1, observed:

“.......Possession is never considered adverse if it can be referred

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