A co-sharer cannot acquire title by adverse possession against the other co-sharer unless there is ouster.

JUDGMENT :

P.C. Misra, J. - The sole plaintiff in title suit No. 72 of 1977 of the court of subordinate Judge, Baripada filed this appeal against the confirming judgment passed by the District Judge, Baripada in title Appeal No. 10-M of 1981. She having died during pendency of the appeal her legal representative have been substituted in her place as appellants. The sole defendants in the said suit also died during pendency of this appeal and his legal representative are 1/a to represented through guardian appointed by the court.

2.The suit is one for declaration of plaintiffs title over the properties described in schedule 'B' of the plaint and for recovery of possession from the defendant. The relationship between the original plaintiff and the original defendant may be seen from the genealogy given below:

Genealogy

Lokanath Singh

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Budhulal = Suni = Sitaram

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___________________|_____________________

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Debi Padamini (Planff.)

= Radhamonan - Govinda Singh

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Lokanath Singh

(Defendant)

Plaintiffs case is that the original ancestor Lokanath Singh died leaving behind Budhumal Singh as his son and Budhumal died leaving two daughters, namely, Debi and Padmani and the widow Suni. Padmani is the plaintiff case. Suni subsequently married one Sitaram singh and 3 sons have been born out of their wedlock. Lokanath had left behind 48 mans of land. According to the plaintiff, there was an amicable partition of the said property in which the three sons of Sitaram were given 24 men and the balance 24 mans were inherited by the two daughters of Budhulal, namely, Debi and Padmini. Debi's husband is Radhamohan and her son is Lokanath singh, the original defendant. According to the plaintiff, Radhamohan was cultivating the whole of the land falling to her share and she was being given a portion of the produce by Radhamohan. About 5 years prior to the suit he did nit give any share of the produce to her which reason the plaintiff has filed the suit praying for the aforesaid reliefs.

3. The defence case was Radhamohan was an illatom-son-in-law of Sunil Bewa and was in possession of the suit land along with his wife, after the death of his wife Debi he and his son,defendant possessed the suit land and the having been in possession of the same for more than 12 years, they have accrued learning title by adverse possession.

4.The learned trial court after framing the issue and considering the evidence adduced before him, care to a conclusion that the plaintiff and the mother of the defendant jointly got the suit property in an amicable family arrangement. It also recorded a finding that the plaintiff become the exclusive owner of the suit land on the death of the Debi which took place 30 to 40 years back. The trial court than considered the question of possession and came to hold that the defendant and his father had been exclusively processing the suit land by which processes they acquired title thereto by adverse possession.

5. The plaintiff preferred title appeal No. 10-M of 1981 in the court of the district Judge, Baripada and the learned appellant court confirmed all the findings of the learned trial court and dismissed the appeal.

6. The learned Counsel appearing for the appellants in this case has challenged all the aforesaid finding and the conclusion reached by the learned courts below on various grounds. I do not want to examine the evidence of the possession on the basis of which the learned court below have recorded a finding that the defendant have successfully prove this exclusive possession in respect of the suit land, the reason being that from the admitted case of the parties question of exclusive possession alone would not determine the fate of the suit. The undisputed facts are the Budulal was the original owner of the lands which came to be inherited by his children. It is not disputed that there was an amicable arrangement between the parties in which the sons of sitaram, the second husband of the suit got 2