Ouster of a co-owner by another co-owner claiming adverse possession must be pleaded and proved. Exclusive possession and non-participation in income are not sufficient to establish ouster. Other circumstances indicating notorious exclusive possession in assertion of hostile title to the knowledge of the person ousted may lead to a presumption of ouster.

P. K. MOHANTI, J.

( 1 ) DEFENDANTS 2 to 14 have appealed against a decree of affirmance.

( 2 ) THE suit was for a declaration of plaintiffs' title to the property described in schedule II of the plaint or, in the alternative, for partition of the property described in Schedule I into two equal shares and allotment of one such share to the plaintiffs. Schedule I relates to 20. 25 acres of land comprised under khata No. 109 in village Jalangbira in the district of Sundargarh. Schedule II relates to 10. 21 acres out of the lands in Schedule I.

( 3 ) THE plaintiffs' case may be briefly stated as follows: koila Khadia was the common ancestor of the parties. He had two sons named Dhomro and Bhadra. The plaintiffs belong to the branch of Dhomro and the defendants to the branch of Bhadra. According to the plaintiffs, the property described in Schedule I was the ancestral joint family property of Dhomro and Bhadra. Due to dissension in the family they separated in mess and cultivated the lands separately according to their convenience though there was no partition by metes and bounds. Out of his own separate earnings, Dhomro took some anabadi lands from the then Ganju of village Bhamerchabe in the district of Ranchi and after reclaiming the same, obtained a raiyati patta in his name. Similarly, Bhadra went to village Bansj-har in Bihar and took some lands from the Ganju of the village on payment of premium out of the joint family funds. But he was dispossessed from the same since he did not take care to get a proper document in proof of his title. The lands in Schedule II have been in long continuous possession of the plaintiffs and their ancestors. During the settlement opera tions, the plaintiffs wanted to have a separate parcha in respect of the same. But the defendants objected and forcibly ploughed a portion of the property, thereby disturbing the peaceful possession of the plaintiffs. Hence, the plaintiffs brought the suit for the aforesaid reliefs.

( 4 ) DEFENDANT No. 1 did not enter contest. He was examined as P. W. 8 on the side of the plaintiffs.

( 5 ) THE suit was resisted by the defendants 2 to 14 who filed a joint written statement contending that the suit for partial partition did not lie inasmuch as the properties situated at Ranchi district have not been brought to the hotchpot. They claimed that the properties situated at Ranchi were acquired jointly by Dhomro and Bhadra and they were in joint possession of the same. They also contended that the suit lands were the self-acquired properties of bhadra and he was in exclusive possession of the same till his death which occurred in 1932. Shortly after his death, defendant No. 1 left for Assam in search of employment. Defendants 2, 3 and 4 were then minors. Taking advantage of defendant No. 1's absence, Budhiram, the father of plaintiff No. 1, fraudulently got the name of his son recorded in the settlement record-of-rights in respect of the suit lands during the Mukherjee settlement. After the death of budhiram, defendant No. 1 returned from Assam and took charge of all the suit lands. It was alleged that all the defendants have been continuously, peacefully and openly possessing the suit lands as of right and that the plaintiffs having no interest in the same are not entitled to any of the reliefs claimed in the suit.

( 6 ) THE trial court came to hold that the suit properties are the ancestral joint family properties of the parties; that the suit was not bad for non-inclusion of the properties situated at Ranchi district; and that the defendants did not acquire title to the suit lands by adverse possession. Accordingly, a preliminary decree for partition of the Schedule I properties was passed in favour of the plaintiffs. On appeal, the decree of the trial court was confirmed by the learned addl. District Judge. In Second Appeal No. 109 of 1972, preferred by defendants 2 to 14 this Court held that the suit properties were the joint family properties of the parties a