Ouster is a positive matter and must be established by the co-owner pleading ouster. Mere exclusive possession by one co-owner is not sufficient to constitute adverse possession.

JUDGMENT :

A. Pasayat, J. - Correctness of a reversing judgment in a suit for partition is assailed by the plaintiff-appellant.

2. Stated in brief, the respective cases of the parties are as follows :

Plaintiff filed the sort for partition of 11 decimals of land, including 5 decimals of homestead land, claiming half share in the suit properties and prayed for appointment of a Civil Cout Commissioner to effect partition. According to him, the suit properties stood recorded in the names of the plaintiff and Site Jaganth Dalei, father of the defendants in the settlement records they were possessing the land amicably having, equal share without any partition by metes and bounds and were paying, rent jointly; after death of Jagannath defendants 1 to 5 threatened to occupy a portion of the suit land forcibly which is under the possession of the plaintiff taking advantage of the fact that there was no partition and therefore, filing of the suit was necessitated.

According to the defendants, during the life-time of their father, who died in the year 1945, the suit properties were partitioned by metes and bounds, and each of them was possessing, his respective share; in the year 1938 plaintiff being in need of money sold 1 1/2 decimals of land from northern side to their father for a sum of Rs. 45/- and delivared possession and they were possessing the same, and in the settlement proceeding their names have also been recorded separately. Their further stand is that they, being in possession of 1 1/2 decimals of land of the plaintiff for more than 12 years, they have perfected their title and interest by way of adverse possession.

3. On the foresaid pleadings, six issues were framed by the trial Court of which issue Nos. 4 and 5 are the vital issues. Issue No. 4 related to the question whether plaintiff had sold 1 1/2 decimals of land as claimed by the defendants and issue No. 5 related to the question whether defendants have acquired title by adverse possession over the aforesaid 1 1/2 decimals of land.

4. The trial Court, on consideration of the evidence, came to hold that the defendants failed to prove their case of sale, adverse possession and claim of previous partition. It accordingly- decreed the suit declaring that the plaintiff on one hand and defendants 1 to 4 jointly on the other were respectively entitled to halt share each of the above suit property. The parties were directed to amicably partition the suit home- stead within three months and in case there was no amicable partition the plaintiff was to apply to the Court for partition through a Civil Court amin commissioner. Defendants 1 to 5 assailed the correctness of the judgment before the District Judge, Cuttack, who while accepting the findings relating to non-sale, reversed the findings so far as they related to the claim of adverse possession. The suit was accordingly dismissed,

5. The primary ground of challenge of the appellant in the second appeal is that the settled position relating to ouster of coparcener from joint family property to accept a plea of adverse possession has not been considered in its,proper perspective.

6 The respondents have not entered appearance in spite of service of notice.

7. In order to resolve the dispute, the position of law relating to adverse possession and ouster needs to be highlighted. Adverse; possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and is maintained against right. (See Alexander v. Polk : 39 Mississippi Reports 655). ' it is trite law that while mere possession of a person without any title may be adverse to the true owner, possession being ihdicium of title, mare exclusive possession would not constitute adverse possession against a tenant-in-common, and when the parties are co-owners, there is' unity of possession;, possession of the co-owner is possession of all the co-owners, and for possession to become adverse, there must be something more than exclus