JUDGMENT : Mohapatra, J. - Defendant No. 2 and the legal representatives of Defendant No. 1 are the Appellants in this second appeal against the reversing judgment of the lower appellate Court arising out of a suit brought by the Plaintiff for partition in respect of the suit property. The admitted genealogy shows that Plaintiff Ganda is the younger brother of original Defendant No. 1 Panika Defendant No. 2 Sitaram is the son of Panika. The Plaintiff brought the suit for partition on the allegation that all the properties of the family had been partitioned in the year 1933 excepting the disputed properties with an acreage 2.86. The Plaintiff asserts that he was in possession of the suit property till 1951 when he was dispossessed by present Defendant No. 2 and so the suit has been brought in the year 155. Defendant No. 1 (Panika) did not contest the suit, but Defendant No. 2 Sitaram took up the defence that there was a completed partition of the suit property which fell to the share of Defendant No. 1 who for arrears of rent was evicted and the suit property was resettled in favour of Defendant No. 2 in the year 1936 since when the (Defendant No. 2) is in exclusive possession of it and so the present Plaintiff has no right, title or interest in the suit property and the partition suit is therefore to be dismissed. 2. The trial Court found that the suit land was not partitioned even though all other properties were divided between the Plaintiff and Defendant No. 1. But nevertheless he has dismissed the Plaintiff's suit on the ground that Defendant No. 2 was in exclusive possession of the suit property on the basis of the resettlement and the Plaintiff had lost title to the property in suit. The lower appellate Court found in favour of the Plaintiff to the effect that the property in suit remained joint when other properties were partitioned between the parties He confirmed this finding of the trial Court. He also confirmed the finding of the learned trial Court that Defendant No. 2 was in possession of the suit property and not the Plaintiff. But nevertheless he allowed a decree in favour of the Plaintiff for partition, holding that possession of Defendant No. 2 may be treated as the possession of the Plaintiff as they are still co-sharers. 3. Mr. But nevertheless he allowed a decree in favour of the Plaintiff for partition, holding that possession of Defendant No. 2 may be treated as the possession of the Plaintiff as they are still co-sharers. 3. Mr. G.K. Misra, appearing on behalf of the Appellant, takes up a point that though the concurrent finding of the Courts below is that Defendant No. 2 was in exclusive possession of the suit property, that possession cannot be treated to be that of the Plaintiff in the face of the circumstances transpiring in the case. His contention is that the undisputed circumstances lead to the conclusion that there was an ouster of the Plaintiff and that the exclusive possession of the Defendant No. 2 was in his own rights and in exclusion of the rights of the Plaintiff. The admitted circumstances are that after the order of the Sub-Divisional Magistrate dated 20.5.1936 sanctioning eviction of both the Plaintiff and Defendant No. 1, both the Plaintiff arid Defendant No. 1 were dispossessed and the Gountia took possession of the land in dispute for a year at least. Thereafter Defendant No. 2 filed a petition for resettlement of the suit land in his favour on payment of arrears of rent. An order was passed, on 8-7-1936 which runs to the effect: The Petitioner may have back his share lands after this year's harvest from the Gountia by way of resettlement provided he pays up his all arrear rents in full in which case Ganda (Plaintiff) will get his share only, Ganda (Plaintiff) be accordingly informed and Gountia too. Ex. c is the notice dated 17-7-1936 to the Plaintiff about the aforesaid order. On 19-7-1936 the entire suit land was put in possession of Defendant No. 2. This is Ex. D and since then, as has been found by both the Courts below, Defendant No. 2 alone is in possession of the entire land. Ex. c is the notice dated 17-7-1936 to the Plaintiff about the aforesaid order. On 19-7-1936 the entire suit land was put in possession of Defendant No. 2. This is Ex. D and since then, as has been found by both the Courts below, Defendant No. 2 alone is in possession of the entire land. When the fact remains that both the Plaintiff and Defendant No. 1 were ousted from possession by the Gountia and possession was recovered by Defendant No. 2 on payment of arrear rents and when he was ordered to take possession in respect of his share only and particularly when it was mentioned in the order itself that Plaintiff (Ganda) was to get possession of his share, Defendant No. 2's possession cannot be treated to be that of the Plaintiff when he took delivery of possession in respect of the entire land. There is no suggestion from the Plaintiff's side that in fact Defendant No.2 made the full payment for himself and on behalf of the Plaintiff also. The fact remains that Defendant No. 2 paid the arrears of rent and thereafter even though he, was entitled only to get possession of his half share, he took possession of the entire land usurping definitely on the rights of the Plaintiff. This position was known to the Plaintiff as would appear from Ex. C. which is a notice given to Ganda (Plaintiff). When therefore to the Plaintiff' knowledge Defendant No. 2 took possession of the entire land while the Plaintiff was entitled to take possession of his share and there being no suggestion whatsoever that Defendant No. 2 was taking possession on payment on behalf of both, there was a complete ouster of the Plaintiff and the exclusive possession of Defendant No. 2 extinguished the right, title and interest of the Plaintiff's suit for partition, therefore, is bound to be dismissed. 4. In conclusion, therefore, the appeal succeeds and is allowed. The judgment and decree passed by the lower appellate Court are set aside and the judgment and decree passed by the trial Court are confirmed and the suit for partition is dismissed. The lower appellate Court has ordered that the costs of the suit are to be borne by the parties equally and I pass the same order that the parties will bear their own costs throughout. Appeal allowed. Final Result : Allowed