S. Mohan, J.
1. The plaintiff, who could not succeed in either of the Courts below in her suit for partition and separate possession of her one-fourth share in the C Schedule properties, has preferred this second appeal.
The facts are as under: One Rayappa Gounder had two daughters, Palaniammal and Nanjakkal. The husband of Palaniammal was one Rangappa Goundar while Nanjakkal was married to one Rama Goundar. Rayappa and another Rama Goundar owned the properties described in A Schedule to the plaint, of an extent of 8 acres 77 cents spread over in S.F. Nos. 479, 480 and 482. Rayappa was in possession of the eastern half which had been described as B Schedule. By a registered settlement deed dated 26th January, 1910 (Exhibit A-1) the B Schedule properties came to be settled in favour of the daughters, Palaniammal and Nanjakkal and their respective husbands. Subsequently, by a sale deed, Exhibit A-2 dated 5th August, 1913 Rangappa, the husband of Palaniammal, purchased the interests of Nanjakkal and Rama Gounder in the B Schedule properties. The plaintiff, being the daughter of Palaniammal and Rangappa Goundar, would claim that her father was in possession of three-fourths share in the eastern half while the remaining one-fourth was in the enjoyment of her mother as per the terms of Exhibit A-1. There was a sub-division of the survey fields. After the sub-division, the eastern half comprised of 1 acre 22 cents in S.F. No. 479/2 and 3 acres 46 cents in S.F. No. 480/2 and they formed the C Schedule to the plaint. A settlement deed was executed by the mother in favour of the plaintiff as a result of which the plaintiff became the owner of the properties. Under that settlement deed the plaintiff also obtained one-eighth right in the well and pump-set in S.F. No. 480/1. The first defendant is entitled to one-fourth share in the C Schedule and the second defendant is entitled to a half share. When a demand was made for partition, that was not acceded to by the defendants. Hence the suit came to be filed for partition of the C Schedule properties and for allotment of one-fourth share therein together with mesne profits.
2. The first defendant, in his written statement, contended that Rayappa enjoyed the eastern half and Rama Goundar enjoyed the western half. It is true that [Rayappa executed the settlement deed. Exhibit A-1, in favour of the daughters. But, in execution of a mortgage decree in O.S. No. 738 of 1928 obtained against Rangappa, Ramaswami Goundar (brother of the first defendant) purchased in Court-auction an undivided half share in all the fields. Thereafter, he took possession through Court on 20th March, 1930. In a partition that took place in the family on 21st October, 1950 as evidenced by Exhibit B-4, the property came to be allotted in favour of the first defendant. At no point of time either the plaintiff or her mother was ever in possession. The title, if any, of the plaintiff's mother had been extinguished by uninterrupted, peaceful and adverse possession for over forty years by the first defendant and his predecessors-in-interest. The second defendant, as the purchaser of the other survey numbers, namely the western portion, is in enjoyment of that property. The second defendant's predecessors-in-title installed a motor and pump-set in the well in the year 1955. The plaintiff's mother did not contribute anything for the aforesaid purpose. It is the first defendant who alone is paying the kist. It is false to say that the plaintiff was dispossessed or ousted in 1968.
3. The written statement of the second defendant was to the effect that he was an unnecessary party to the suit since he had nothing to do with the dispute between the plaintiff and the first defendant.
4. The learned District Munsif, on trial, came to the conclusion that though the plaintiff had title to one-fourth of the C Schedule properties, her title and interest got extinguished by adverse possession for over a period of forty years. It was further found that the plaintiff had not proved her possession within twelve years prior to the filing of the suit, and consequently, the suit was dismissed. Aggrieved by the dismissal, the matter was taken up in appeal in A.S. No. 119 of 1974 by the plaintiff to the Sub-Court of Coimbatore. The learned Fifth Additional Subordinate Judge concurred with the findings of the trial Court and found that having regard to the open, uninterrupted enjoyment, the plea of adverse possession had been made out and consequently, he dismissed the appeal. Thus the second appeal.
5. The learned Counsel for the appellant strenuously contends that once the title of the plaintiff is established, the relationship between the plaintiff and the first defendant becomes that of co-owners and in such a case, unless there is an express plea of ouster to the knowledge of the plaintiff, it is not correct to hold that by mere long possession for forty years, adverse possession is established. This is not a case of an ordinary adverse possession between strangers, but adverse possession as against a co-owner. The law requires strict proof of such a plea as seen from the decision in Abdul Wahed v. Mohan Bashim : AIR1930Cal466 . Elaborating this point, learned Counsel also relies upon the decision in Mohammad Ibrahim v. S. Mohammad Abubakkar : (1976)2MLJ478 , where it is held that ouster must be specifically pleaded and proved. All that is stated here in paragraph 4 of the written statement of the first defendant is that neither the plaintiff nor her mother was ever in possession of any portion of the properties for the last forty years and therefore, the title of the plaintiff had became barred by adverse possession and limitation. There is no specific averment as to the knowledge of the plaintiff, nor about ouster, which are material. In support of this submission, learned Counsel also cites P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 . Lastly, is it submitted that it is the definite case of the first defendant that the suit property had been demised in favour of D.W. 3, while D.W. 3 would say that he is not aware as to who the owner of the property is and that the same is lying fallow.
6. As against this, the learned Counsel for the respondents would urge that there are enough averments in the written statement to constitute adverse possession. When once adverse possession is pleaded as between co-owners, it is a matter of proof that such adverse possession was to the knowledge of the other side and that there is an ouster. From a set of circumstances, it is open to the Court to presume ouster as laid down in Ibrahimsa v. Sk. Meerasa : (1972)1MLJ466 . In the instant case, it is impossible to believe that right from the date of the Court-auction-purchase and taking of possession on 20th March, 1930, neither the mother, namely the predecessor-in-interest of the plaintiff, nor the plaintiff herself had any knowledge. On the contrary, the plaintiff came forward with the specific allegation that she was in possession and management of the property till 1968, while the evidence of P.W. 2, the karnam, is to the effect that the land is lying fallow. Then, again, it is not stated in the plaint that the plaintiff was in possession and enjoyment of the southern portion. That case is sought to be introduced only during oral evidence. It is somewhat surprising that a suggestion should have been put to P.W. 2, that at the time when possession was taken pursuant to the Court-auction, the mother of the plaintiff was present and what was then taken was only symbolical delivery. Here the plaintiff comes forward stating that she was in enjoyment, but, as has been rightly found by the Court below, she has miserably failed to prove her possession. The first defendant succeeds in proving his possession right from the date of purchase, both by himself and also by his predecessor-in-title. Further, there have been dealings in respect of this property in the family openly as if it belonged to them, as evidenced by the partition deed, Exhibit B-4. All these facts and circumstances would tend to point out that the plaintiff had knowledge and that ouster could be inferred therefrom, as laid down in the decision cited.
7. It is true that in the case of a co-owner mere possession, however long it might be, could not constitute adverse possession. It is also true that mere non-participation in the income would not lead to the automatic conclusion of ouster. Possession must be over the statutory period and there must be a dear ouster to the knowledge of the co-owner or the co-heir against whom adverse possession is pleaded. No detailed discussion by referring to many authorities would be necessary excepting to cite P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 , wherein, as to what would constitute knowledge and ouster have been clearly spelt out. In this case, what is the position and whether there are enough averments in the written statement, is the question. Before examining the averments, it is necessary to note what exactly is the case of the first defendant. The case of the first defendant is, by his brother's purchase under the Court-auction proceedings and delivery of possession on 20th March, 1930, he became the owner of the entirety of the C Schedule properties. Consistent with that, he states in paragraph 4 of the written statement that from the time of purchase both his predecessor-in-title as well as he were in possession and enjoyment for a period of forty years and consequent on that uninterrupted possession during that long period, the title of the plaintiff got extinguished by adverse possession. The question of co-heirs or co-owners does not arise at that stage. Therefore, it will be too much to expect the first defendant to plead knowledge or ouster. In other words, only when the title is admitted, the plea relating to ouster should be made and proved. But, here is a case wherein the first defendant denies title and sets up title in himself by reason of the Court-auction-purchase by his brother. The title of the plaintiff came to be established only on trial. Under these circumstances, there was absolutely no possibility of the first defendant pleading ouster. Nevertheless, what has to be looked into is whether there is enough evidence in this case to prove ouster or knowledge of peaceful possession and enjoyment for over forty years either by the predecessors of the first defendant or by the first defendant himself. In this view, I do not think either the ruling in Abdul Wahed v. Mohan Bashim : AIR1930Cal466 , or the one in Mohammad Ibrahim v. S. Mohammad Abubakker : (1976)2MLJ478 , would have any application to the facts of the case. Therefore, the next question is whether there are enough circumstances or material from which the Court could infer adverse possession as against the co-owner, namely the plaintiff; in other words, whether the Court could infer knowledge or ouster as laid down in Ibramsa v. Sk. Meerasa : (1972)1MLJ466 . The consistent case of the first defendant is that right from the Court-auction-purchase he alone has been in possession and enjoyment of the property. That is borne out by the kist receipts as evidenced by Exhibits B-6 to B-21. He has also leased out the property in favour of D.W. 3 under Exhibit B-5. Merely because the patta stands in the name of the plaintiff's mother or the plaintiff, that cannot prove possession by itself in the absence of any other evidence to show enjoyment, and no such evidence is forthcoming. The plaintiff states that her mother was in enjoyment of the property and was paying the kist. But, no kist receipt is forthcoming. She is not even definite as to which portion either she or her mother was in enjoyment, because there is no averment in the plaint that the southern portion was in her enjoyment, while such a case was built up only during oral testimony. A suggestion is thrown to D.W. 1, that at the time when possession was taken pursuant to the court-auction, Palaniammal was present and that what came to be taken possession of was only the property other than her share. This itself shows that the plaintiff's mother was aware of the taking of possession by the first defendant. It matters little as to what kind of possession was taken by the brother of the first defendant, whether it was symbolical or actual, because we are concerned only with the question of knowledge, Then, again, I am not persuaded to hold that a person who lives in the same village for over a period of forty years would not have known about the possession and enjoyment of the first defendant, as rightly held by the learned trial Munsif. The case of the plaintiff is, till 1968 her mother was in possession and enjoyment, while the evidence of the karnam (P.W. 2) is that the land is lying fallow, which directly contradicts the case of the plaintiff. The evidence of D.W. 3 also is not helpful to the appellant, because all that he says is that he does not know who is the owner of the property south of the property demised in his favour and that the property on the south lies fallow. Even assuming this is helpful, in his examination-in-chief he categorically states that the southern 1 acre and odd does not lie fallow and Palaniammal did not enjoy the property. The evidence of D.W. 3 in cross-examination must be taken in conjunction with this. Therefore, I hold that the second appeal carries no merit and is hereby dismissed. However, there will be no order as to costs.