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 at the inception and that the suit was not bad for non-inclusion of the properties situated at Ranchi district But so far as the question of adverse possession and loss of plaintiffs' title to the joint family proprety is concerned, the findings of the courts below were set aside and the case was remitted back to the lower appellate court for a fresh disposal.
7. After remand, the lower appellate court, on a consideration of the evidence on record, came to hold that the defendants were in possession of the suit lands for about 30 years, but there was absolutely no material on the record to show that the defendants were in cultivating possession of the suit lands in open assertion of hostile title.
Upon such findings, the appeal was dismissed and the decree passed by the trial court was maintained.
8. It is urged on behalf of the appellants that exclusive possession by one co-owner and non-participation in the profits of the property by the other co-owner for a long period of 30 years would amount to ouster.
9. The law relating to the doctrine of ouster is well settled and may be recapitulated. The possession of one co-owner is presmued to be on behalf of all the co-owenrs in view of the unity of title and possession. Because of this unity of title and possession among co-owners, the law requires, to constitute ouster, proof of something more than mere exclusive possession and exclusive receipt of income. To bring about ouster, the co-owner's exclusive possession must be in denial of the title of the other co-owner and it must be brought home to the knowledge of the latter that his rights are invaded in open assertion of a hostile title. In this respect, there is a fundamental difference of the co-owner's adverse possession from the adverse possession on the part of a stranger. In the latter's case it is sufficient that possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. It i.s not necessary that adverse possession should be brought home to the knowledge of the excluded co-owner.
10. Ouster has to be pleaded and proved. A co-owner claiming title by adverse possession has to show when possession became adverse and how it was brought home to the knowledge of the ousted co-owner. If he does not plead or lead any evidence, it is not possible for the court to arrive at any finding on the point. There may, however, be cases where it may not be possible for the co-owner in possession to lead evidence as to when ouster commenced and how it was brought home to the knowledge of the ousted co-owner. In such cases, ouster can be presumed from exclusive possession of one co-owner and non-participation in the income of the property by the other co-owner when possession dates back to a time beyond living memory and it becomes impossible to prove by direct evidence that the excluded co-owner had knowledge of the denial of his title and the attendant circumstances are in accord therewith. The principle underlying this rule is that if the ousted co-owner sleeps over to assert his rights for a considerable length of time, the co-owner in possession should not suffer or be handicapped on account of the disappearance of evidence.
11. The law on the point has been summed up by their Lordships of the Supreme Court in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy: AIR 1957 SC 314 thus :--
'Now, the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nee precario. (See the Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at p. 82: (AIR 1934 PC 23 at p. 25). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, (1900) 27 Ind App 136 at p. 140 (PC)). But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing coheir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title (See Corea v. Annuhamy) 1912 AC 230. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevara-thnammal, AIR 1919 PC 44 at p. 47, quotes, apparently with approval, a passage from Culley v. Deod Taylerson, 0840) 3 P & D 539: 52 RR 566, which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur' (See also Govindrao v. Rajabai, AIR 1931 PC 48). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession'.
12. In Culley v. Deod: (1840) 113 ER 697 an action in ejectment was brought by the plaintiff, a co-tenant, after an interval of about 35 years. On the question of long continued possession, Lord Denman, C.J. observed at page 700 as follows:--
'...... Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant-in-common, has not been in participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster'. (The underlining is mine).
13. In Govindrao v. Rajabai: AIR 1931 PC 48, the case of ouster and adverse possession asserted by the defendants was accepted because there were certain revenue proceedings between the parties in which the defendants claimed mutation in their sole name and denied that the plaintiff had any interest in the properties. This was sufficient to indicate ouster in addition to the exclusion of the plaintiffs from the profits of the property for more than twelve years.
14. In a Bench decision reported in (1912) 16 Cal WN 849, (Avenenussa Bibi v. Sheikh Isuf) Sir Lawrence Jenkins, C. J., after observing that there must be exclusion and that mere non-participation in rents and profits would not by itself necessarily amount to ouster held as follows.:--
''I am prepared to repeat what I have said in a previous case that mere non-participation in, rents and profit s would not necessarily of itself amount to an adverse possession, but such non-participation or non-possession may, in the circumstances of a particular case, amount to an adverse possession. Regard must be had to all the circumstances, a most important element is the length of time... The circumstances that have to be taken into consideration appear to me to be these, among others, the relationship of the parties, their position, the mode of life in the particular community to which the parties belong, the character of the property and other circumstances of a similar character'.
15. In Ramlakhan Singh v. Chathu Sahi, AIR 1929 Pat'624, it was observed that even though possession of one co-owner is on behalf of all, if the claimant owner has been out of possession and had not been in participation of rents and profits for a long lapse of time, the court may draw the presumption of ouster from such long lapse of time in the light of the attendant circumstances ol' the case.
16. In Peeran Sahib v. Jamaluddin Sahib; AIR J958 An Pra 48 Subba Rao, C. J., stated the law in the following terms:--
'It is not necessary to multiply cases as the law is well settled. The possession of one co-owner is the possession of all co-owners. A co-owner who pleads ouster must establish that there was a denial of the other co-owner's right to his knowledge and that he continued to enjoy the property exclusively for the statutory period after such unambiguous denial. Ouster in suitable cases can be presumed from non-participation in the profits of the land for a long period of time affecting different generations under such circumstances that denial could not be proved but could only be inferred.'
17. In V. Sooppi v. N. Moossa: AIR 1969 Ker 222 a Division Bench held as follows.--
'.........When one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with the other co-owners, it is, in our opinion, a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, courts will be justified in infering ouster or exclusion''.
18. From a conspectus of the case-law referred to above, it will be noticed that a presumption of ouster may be drawn against co-owner from long continuous exclusive possession by a co-owner not only on the ground of exclusion from the profits of the property, but on account of other circumstances in addition to that fact indicating notorious exclusive possession in assertion of hostile title to the knowledge of the person ousted.
19. In the present case, the appellants neither pleaded ouster nor led any evidence on the question. Their main plea in the written statement was that the property in Schedule I was the self-acquired property of their ancestor Bhadra Khadia. This plea has been disbelieved. The finding that the suit property is the ancestral joint family property stands final and conclusive between the parties.
20. There is no averment in the written statement as to when the adverse possession commenced. There is no material on the record to show that the plaintiffs' right to a share was denied to their knowledge at any time. There is nothing in the evidence to indicate any overt act or other conduct on the part of the defendants to make known to the plaintiffs that they intended to hold the property for themselves to the exclusion of the plaintiffs. This is not a case where it can be said that owing to long lapse of time, it is not possible for the defendants to lead evidence as to when ouster commenced and how it was made known to the plaintiffs. The primary parties are alive and they could give direct evidence about the ouster. It is significant to note that defendant No. 1 who is now aged about 70 years did not support the plea of ouster. On the other hand, he gave evidence supporting the plaintiffs' case of joint ownership and joint possession. The appellants have not proved any circumstance to indicate, that the plaintiffs had knowledge of the denial of their title. The lower appellate court was, therefore, justified in maintaining the preliminary decree for partition passed by the Trial Court.
21. The appeal fails and is dismissed, but in the circumstances, without any order as to costs.