To establish adverse possession, it is necessary to prove peaceful, open, and continuous possession, and the hostile possession to the knowledge of the true owner. The plea of ouster by a co-owner of the rights of other co-owner is unsustainable in the absence of proof of hostile possession to the knowledge of the true owner.

1. The second appeal is filed by the defendant against the concurrent findings of the courts below.

2. The suit was filed by the respondent/plaintiff for partition claiming half share in the suit property. The plaintiff contended that the suit property was purchased by her and her husband. They had one daughter, chamundeshwari. The plaintiff and her husband separated due to a dispute. When the daughter was a minor, the plaintiff’s husband sold the property in favour of the defendant’s father by executing the sale deed for himself and as guardian of the minor child. The plaintiff’s husband had falsely declared that the plaintiff was no more. Claiming the sale deed to be invalid and not binding on her and the sale deed could only bind half share of her husband, the plaintiff had filed the suit for partition.

3. Resisting the claim, the defendant contended that the plaintiff is not the wife of late kulandaigounder, that the property was purchased by kulandaigounder in his name and in the name of his wife, that the kulandaigounder was in absolute possession, that he had mortgaged the entire property on 22-1-1975 and subsequently sold the property to the defendant’s father on 06-12-1976. Subsequent to the sale, the defendant’s father until his life time and subsequently the defendant has been in continuous, uninterrupted possession for 32 years and therefore claimed to have perfected the title by adverse possession.

4. Considering the oral as well as documentary evidence, preliminary decree has been passed in favour of the plaintiff. The same was also confirmed by the first appellate court. Aggrieved, the defendant is before this court.

5. At the time of admission, the following substantial questions of law were framed:

Whether or not the sale of the entire property by Kolandai Gounder under Ex.A2 in favour of the appellant's father operate against all the co-owners and consequently the appellant and his predecessors in title perfected their title to the suit property by way of adverse possession?

Whether the sales effected by a co-owner in favour of a stranger bars the right of the non-alienating co-owner also and the question of ouster does not apply to a stranger?

6. The learned counsel appearing for the defendant submitted that the courts below committed grave error in overlooking the fact that the plaintiff deserted her husband and their daughter who was in a tender age and after the efforts to trace her turned futile, she was presumed dead as she was unheard for more than seven years.

7. The learned counsel also drew the attention of this court towards the mortgage deed marked as Ex.B12 dated 22.01.1975 to agitate that the courts below failed to consider that the plaintiff’s husband had mortgaged the entire property in favour of the defendant’s uncle and therefore, he alone was in possession of the property. The learned counsel further contended that earlier the plaintiff’s husband and subsequently the defendant’s father and after his death, the defendant was in open, continuous and uninterrupted possession. The revenue records also stand in the name of the defendant and his predecessors, who have been paying the kist charges for more than 30 years and therefore, they have perfected the title by adverse possession.

8. The learned counsel for the appellant/defendant relying upon the judgments reported in AIR 1972 Kerala 229 (Karthiyayani vs. U.Kallyani), 1967(1) MLJ 383 (P.N.Kailasanatha Mudaliar vs. Viswanatha Mudaliar), 1942 (2) MLJ 321 (T.P.R.Palania Pillai (died) and others vs. Amjath Ibrahim Rowther and another) and 1999(1) MLJ 173 (Sundaravalli Ammal Versus Perumal & Others) in support of his contention that the period for calculating the adverse possession would have to be reckoned from the date on which the entire property was mortgaged by the plaintiff’s husband on 22.01.1975 or 06.12.1976, the date on which the property was sold to the defendant’s father and the notice of ouster would not be applicable in case of a st