Mere possession by one co-sharer does not constitute ouster unless there is material to justify an inference that he either expressly or by implication refused to allow the other co-owner to be in possession or to participate in the enjoyment of the joint property.

Judgement

NARASIMHAM, J. :- This is an appeal by the plaintiff against theappellate judgment of the Addl. District Judge of Berhampur reversing the judgment of the Addl. Munsif of Aska and dismissing the plaintiffs suitfor partition of a house.

2. The house in dispute originally belonged to one Saudagar Ismail who died leaving two sons named Md. Issack and Abdul Waheb. On 29-3-1934, the plaintiff obtained a sale deed from. Md. Issack by which the latter purported to convey to him the whole of the house alleging that he was the sole owner of the same. On 3-10-1934, however deft. 3 obtained a sale deed from one Kundana Bibi, the widow of Abdul Waheb, by which she purported to convey to him the whole house

alleging that she was the sole owner of the same.

As was to be expected, disputes started between the two purchasers and the plaintiff instituted a suit (O. S. No. 311/37) for recovery of possession of the whole house, His suit was decreed by the then Addl. Munsif of Aska. But on appeal (Appeal No. 26/38) the Subordinate Judge of Berhampur modified the Judgment of the trial court and decreed the plaintiffs suit to the extent of eight annas share of the house only.

He further gave a direction to the effect that the plaintiff was entitled to possess his eight annas share jointly with the other co-shares so long as no partition was effected. The decision of the appellate court was given on 6-4-1933. The Present suit was brought, by the plaintiff on 30-1-1947 for partition basing his claim mainly on the decision of the appellate court mentioned above so far as the right to eight annas share was concerned.

3. The trial court had no difficulty in decreeing the plaintiffs suit inasmuch as the title between the parties had been completely adjudicated in the previous litigation. The lower appellate court, however, held that on the admission of the plaintiff himself he was completely out of possession ever since the date of his purchase from Md. Issack on 29-3-1934 and that a case of duster for more than the statutory period of twelve years had been clearly made out. He therefore dismissed the plaintiffs suit.

4. The only point or consideration in the second appeal is whether on the evidence adduced in the case the lower appellate court was justified in Holding that a case of ouster was made out. In his deposition in the present litigation the plaintiff stated that he was never in possession of the suit house and that defendant 3 was in possession ever since the date of his purchase on 3-10-1934.

Doubtless, this admission of the plaintiff by itself would not suffice to show that he lost his title by ouster. It is well known that as between two co-sharers mere possession by one co-sharer would not constitute ouster unless there is some material to justify an inference that he either expressly or by implication refused to allow the other co-owner to be in possession or to participate in the enjoyment of the joint property. This principle of ouster as amongst the original co-sharers applies with equal force as against the alienees from trip co-sharers also force as against the Narain Rai v. Pundeo Rai. AIR 1947 Pat 99 (A)).

5. The plaintiffs deposition therefore does not make out a case of ouster. It does not show that defendant 3, when rte obtained possession on 3-10-1934, denied the plaintiffs title and refused to allow him to participate in the enjoyment of the income from the property. The lower appellate court was fully conscious of this difficulty but thought that the plaintiffs deposition (Ex. C) in the previous litigation (O. S. No. 311/37) contained admissions which established ouster beyond any doubt.

The admissibility of this deposition was however challenged on the ground that the plaintiffs attention was not drawn to the same as required by S. 145, Evidence Act. For the purpose of deciding this appeal it is unnecessary to discuss this question further. Even if it be assumed that Ex. C is admissible we are not satisfied that the admissio