MEHROTRA, C. J. : This is plaintiffs' appeal. The facts as set out in the plaint are that one Bhagmunia Gaur and her son Ghar Baran Gaur were the owners in possession in equal shares in respect of the entire lands pertaining to Patta No. 242. After the death of Bhagmunia Gaur, her two sons Ghar Baran Gaur, the defendant No. 1, and one Lakhan Gaur, became the owners in respect of the entire disputed patta land to the extent of 12 annas and 4 annas share respectively. Defendant No. 1, who is the son of Bhagmunia Gaur, managed the property during the life time of his mother and also after her death. The plaintiffs are six brothers. Out of these six brothers, Mathura Mohan De separated from the joint family some 25 years ago. Plaintiff Nos. 1 to 4 used to reside in the main residence. About 30 years ago, plaintiff No. 2 came to Silchar and entered in service. Thereafter he brought plaintiff No. 3 with him for carrying on business there. Plaintiff No. 3 took settlement of some land out of the dis­puted land for starting business from defendant No. 1. According to the allegations in the plaint, the settlement was made by defendant No. 1 on behalf of the defendants and his other co-sharers. There­after Lakhan Gaur, the brother of defendant No. 1, sold his share of land out of the disputed patta land to the plaintiffs. Lakhan Gaur execut­ed a kobala in favour of plaintiff No. 2 by receiv­ing the price of the land from him on behalf of the plaintiffs' family. Thereafter plaintiff No. 2 on behalf of the other plaintiffs got their names mutated in respect of the land purchased and the plaintiffs claimed to be in continuous possession of the disputed land under the right of purchase from the brother of defendant No. 1. Pro forma defendant No. 6 also admitted The plaintiffs as his co-sharers in occupation of the lands. The dis­puted land, according to the plaintiffs' case, was never partitioned among the co-sharers and the co-sharers had been in joint possession^ the land in respect of their shares in the property. The plain­tiffs on these allegations claimed the following reliefs: "(a). Pro forma defendant No. 6 also admitted The plaintiffs as his co-sharers in occupation of the lands. The dis­puted land, according to the plaintiffs' case, was never partitioned among the co-sharers and the co-sharers had been in joint possession^ the land in respect of their shares in the property. The plain­tiffs on these allegations claimed the following reliefs: "(a). That the suit land be proportionately partitioned without affecting the revenue and delivery of the possession after demarcation of 2 annas share of the plaintiffs be given to the plaintiffs by making a separate lot of the land. (b) For any other relief to which the plaintiffs are entitled to get against the defendants under the law. (c) For a preliminary decree for the entire costs of this suit against the defendants." (2) In paragraph 2 of the relief, the plaintiff! further prayed that the suit land be proportionately partitioned after declaration of the plaintiffs title if anyone of the principal defendants denied the rights of the plaintiffs. The land was described in the schedule and it measured an area of 2 Bighar 13 Kathas 9 Chataks, within the boundary mentioned in the schedule, of the re-surveyed Patta No. 242; in Silchar Town. A fixed court fee was paid out the plaint. (3) Written Statement was filed by the contest­ing defendant Gharbaran Gaur. In the defence mainly the case was that the disputed land of Patta No. 242 in the re-survey was included in Patta No. 83 of the Cadastral survey. When the cadas­tral survey was in force, defendant No. 1 decided to purchase the land from the then owners Mustt Anwar Bibi and others and accordingly after sell­ing the said land to the defendant No. 1 Mustt Anwar Bibi and others handed over the right and I possession to the defendant No. 1. Bhagmunia Gam became blind as she had an attack of small pox in' early childhood. She was living all along with defendant No. 1 and defendant No. 1 was main­taining her throughout. When Lakhan Gaur, the brother of defendant No. 1, was'12 or 13 years old, he separated from his other brothers. He neither maintained his mother at any time nor had any connection with the defendant No. I. The defendant No. 1, however, thought that in case he died before his mother she might not have any means j; of her maintenance. He neither maintained his mother at any time nor had any connection with the defendant No. I. The defendant No. 1, however, thought that in case he died before his mother she might not have any means j; of her maintenance. With that in view, at the time of the execution of the kebala in his favour by; Anwar Bibi and others, the defendant No. 1 got included the name of his mother in that kebala.; The whole price was paid by the defendant No. 1 : as his mother had no means to pay the considera­tion of the same. On the basis of the above purchase, the mother, according to the defendant No. I, had no title in the aforesaid property, and the defendant No. 1 was alone the owner of the same. The remaining one-third share in the cadastral survey Patta No. 83 is said to have been purchased by defendant No. 1 alone in which the mother had no share and that was not disputed. It was alleged by him that plaintiff No. 3 took a settlement of the disputed land described in the schedule attached to the plaint for 10 years since 1st of Magh, 1340 B. S. corresponding to 15th January 1934 to the end of Pous 1349 B. S. corresponding to the last part of January 1943. It was not disputed that settlement was made in respect of some of the land of this patta with some of the plaintiffs. Mainly the defence taken by the defendant No. 1 in his written statement was that by the purchase from Must. Anwar Bibi and others, the mother acquired no interest in the land of Patta No. "242. Originally the land was in cadastral survey patta No. 83, but subsequently the land formed part of two pattas 242 and 30/. The defendant No. 1 mainly pleaded that the suit was not maintainable inasmuch as the vendor of the plaintiffs, Lakhan Gaur, had no title to the property as the mother was not the owner of the property. If the mother was the joint owner of the property along with defendant No. 1 by pur­chase from Must. Anwar Bibi and others, obviously after her death the property would devolve on ^he two sons in equal shares. If the mother was the joint owner of the property along with defendant No. 1 by pur­chase from Must. Anwar Bibi and others, obviously after her death the property would devolve on ^he two sons in equal shares. The result of the two purchases was that defendant No. 1 became the owner of 12 annas share because the share of the mother was divided equally after her death bet­ween her two sons. The Subordinate Judge dis­missed the suit mainly on the ground that defen­dant No. 1 became the owner of the property by adverse possession against Lakhan Gaur, the ven­dor of the plaintiffs, and admittedly when the pro­perty was transferred to the plaintiffs by Lakhan Gaur, he had no interest left in the property, and whatever interest he acquired by inheritance from his mother he lost it by adverse possession. The trial court observed that as the title of Lakhan Gaur had been lost by adverse possession, he in­herited no property from his mother. (4) It is difficult to follow the reasoning of the Subordinate Judge. The question of acquisition by f defendant No. 1 of the interest of Lakhan Gaur by adverse possession will only arise if Lakhan got property by inheritance from his mother. If he got nothing by inheritance from his mother the question of adverse possession would not arise. The main question, therefore, is whether the ven­dor of the plaintiffs before transferring the pro­perty to them had lost all interest in the property on account of adverse possession by defendant No. 1. The case set up by the defendant No. 1 that the mother had no title to the property and as such no property devolved on Lakhan Gaur has not been accepted by the Subordinate Judge. It should be pointed out that Mr. Choudhuri in sup­porting the judgment of the court below has faintly argued that the finding of the Subordinate Judge that the mother also had interest in the property is not correct. His contention is that mutation of the mother was made only for the purpose of consolation and she had acquired no title to the property under the purchase. As has been pointed out by the Subordinate Judge, it is amply clear from the evidence on re­cord that the name of the mother was also mutated along with the defendant No. 1 in respect of the disputed property. As has been pointed out by the Subordinate Judge, it is amply clear from the evidence on re­cord that the name of the mother was also mutated along with the defendant No. 1 in respect of the disputed property. It is also in the evidence of defendant No. 1 that he was apprehending that in case he died before his mother she might not have any means of maintenance. With that object in view he might have decided to purchase some pro­perty for the mother also, but that is not consis­tent with the case of the defendant No. 1 that by purchase he never intended that the mother should have any share in the property. In fact, in his statement in Court, he also said that he had pur­chased the property to enable his mother, in case of his death earlier, to transfer the property and thus maintain herself. This statement also clearly shows that at the time of the purchase the defen­dant No. 1 intended that the mother in her own right should have share in the property. That be­ing the case, it cannot be said that after her death Lakhan Gaur will have no share in the property. (5) It is convenient at this stage to dispose of some other minor points on which the Subordi­nate Judge dismissed the suit. The court below is of opinion that the court fee paid by the plaintiff was not sufficient and thus the suit was liable to be dismissed. He also held that the suit is barred by S. 42 of the Specific Relief Act. No such plea appears to have been taken in the written state­ment. The contention of Mr. Choudhuri appear­ing for the respondents is that even if in specific terms this point might not have Been raised, the court below could examine the allegations in the plaint itself and decide as to whether the court fee paid was sufficient or not. The plaintiffs paid a fixed court fee of Rs. The contention of Mr. Choudhuri appear­ing for the respondents is that even if in specific terms this point might not have Been raised, the court below could examine the allegations in the plaint itself and decide as to whether the court fee paid was sufficient or not. The plaintiffs paid a fixed court fee of Rs. 20/- under Schedule II, Arti­cle 17(vi) of the Court Fees Act, which provides as follows: "Every other suit where it is not possible to estimate at a money-value the subject-matter in dis­pute and which is not otherwise provided for by this Act." The contention of the respondents is that it ''s a suit which is covered by S. 7(iv) (b) to enforce the right to share in any property on the ground that it is joint family property. It is also contended that if it is not covered by S. 7(iv)(c), it is covered by S. 7(v) and the value of the suit should be the market value of the property. It is not a simple suit for partition. It is contended that in cases where both the' parties are in possession of the property, the simple suit for partition will be covered by Schedule II, Article 17, but in cases where the plaintiff is ad­mittedly out of possession, it is a suit for posses­sion or in case partition is asked for after declara­tion, it is a suit for declaration with consequential relief. We do not think that there is any substance in this contention. The plaintiffs themselves de­finitely alleged that their predecessor had been all along in constructive possession of the property, and, as such, it cannot be said that it is admitted in the plaint that the plaintiffs were out of posses­sion and thus the provisions of S. 7(iv) (c) are at­tracted and not the provisions of Schedule II, Arti­cle 17 (vi). A number of authorities have been cited by Mr. Choudhuri in support of his conten­tion. Reference may be made to the case of In re' Nandalal Mukherjee, reported in AIR 1932 Cal 227. Reliance is placed on the following pas­sage at page 228: "A person is not entitled to partition unless and until he is in possession of his share. But, if he is out of possession of his share, the Court does not require him to bring two suits. Reliance is placed on the following pas­sage at page 228: "A person is not entitled to partition unless and until he is in possession of his share. But, if he is out of possession of his share, the Court does not require him to bring two suits. He can bring a suit in which he may claim to recover pos­session of his share and he may also claim to have that share partitioned by the same decree. If it appears that he is out of possession according to his own showing, then he has to Bring a suit to get possession of his share; and it is perfectly true that, in that case, he would have to pay court-fee on the market value of that share. It is not a question of declaration or declaration with conse­quential relief. In the present case, it cannot be said that on their own showing the plaintiffs have admitted that they are out of possession. They have claimed to be in constructive possession of the land and the princi­ple laid down in the case referred to above, there­fore, is not applicable to the facts of the present case. The next case referred to is Asa Ram v. lagan Nath, reported in AIR 1934 Lah 563 (FB). It is laid down in that case that "in a suit to enforce the right to share in joint family property, i.e. a suit to be restored to joint possession or enjoyment of joint family pro­perty, court-fee would be payable under S. 7(iv)(b), ad valorem on the value of the relief as fixed by the plaintiff; and in a suit for partition of joint property, whether owned by a joint family or otherwise, where the plaintiff alleges that he is in actual or constructive possession thereof, court-fee payable would be Rs. 10/- under Article 17(vi), Schedule 2, Court-fees Act". Possession contemplated under the provisions of I the Court-fees Act is not actual possession. Even when the plaintiff alleges that he has been in con­structive possession of the property and asks for partition of his share, it cannot be said that he has brought a suit for declaration of his title as a joint owner in respect of the property over which he has no possession and thus S. 7(iv)(b) is attracted. Even when the plaintiff alleges that he has been in con­structive possession of the property and asks for partition of his share, it cannot be said that he has brought a suit for declaration of his title as a joint owner in respect of the property over which he has no possession and thus S. 7(iv)(b) is attracted. To the same effect is the other case reli­ed on by the respondents Mahadeo Gopal v. Hari Waman. reported in AIR 1945 Bom 336. These cases are thus distinguishable on facts. In the present case, the plaintiffs have clearly asked for partition of their share and Schedule II, Article 17(vi) is attracted. It has not been shown which other section of the Court-fees Act will be appli­cable to the facts of the present case. The Sub­ordinate Judge has not also come to a definite con­clusion as to which section of the Court-fees Act will be attracted and what will be the court-fee payable by the plaintiffs. Section 6 of the Court-fees Act provides that "no document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in any Court, of justice. or shall be received or furnish­ed by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document." The document on the allegations of the plaint was! considered to bear the proper court-fee and it was taken on the record. If the Subordinate Judge was of opinion that the court-fee paid by the plaintiffs was not sufficient, he should have giver a decision earlier on this point and should have given an opportunity to the plaintiffs to pay up the deficit court-fees. The suit at the stage of argument could not be dismissed on that ground; even assuming that the court-fee paid was not sufficient according to the court below. But as we are of opinion that on the allegation made in the plaint the court-fee paid was sufficient, the order of the court below that the suit should fail for want of payment of proper court-fee is erroneous. The suit also cannot fall under section 42 o the Specific Relief Act. The plaintiffs have claimed a declaration. But as we are of opinion that on the allegation made in the plaint the court-fee paid was sufficient, the order of the court below that the suit should fail for want of payment of proper court-fee is erroneous. The suit also cannot fall under section 42 o the Specific Relief Act. The plaintiffs have claimed a declaration. They have, in fact, claimed that after the declaration of their title, partition of the property should be done and separate allotment should be made of the plaintiffs' share. It cannot therefore, be said that the consequential relit which was available to the plaintiffs was not claimed by them. Moreover the plaintiffs have con with a definite allegation that their predecessor been in constructive possession of the property aw thus the only relief which they could have claim: under the circumstances was of partition of to property. That would only involve the change t f the mode of possession and enjoyment of the property and not a claim for possession of the proper from which they were out of possession. There thus no force in this contention of the respondent: (6) The next point urged by Mr. Choudha! is that the claim of the plaintiffs is barred by the principle of estoppel embodied in Section 116 ( I the Indian Evidence Act. Section 116 reads follows: "No tenant of immoveable property, or person claiming through such tenant, shall, during to continuance of the tenancy, be permitted to den that the landlord of such tenant had, at the beginning of the tenancy, a title to such immoveable property; and no person who came upon any immovable property by the license of the person in posses­sion thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given." There are two answers to the contention of the respondents. Firstly, Section 116 bars the tenant to deny the title of his landlord at the time of the creation of the tenancy. It is not the case of the plaintiffs that on the date when the settlement w taken by some of the plaintiffs from Gharbara Gaur, the defendant No. 1, he was not the owns of the property. The plaintiffs acquired title 6 the property after the settlement with them. It is not the case of the plaintiffs that on the date when the settlement w taken by some of the plaintiffs from Gharbara Gaur, the defendant No. 1, he was not the owns of the property. The plaintiffs acquired title 6 the property after the settlement with them. Section 116 of the Evidence Act cannot be pleaded as a bar to the tenant purchasing by paying consideration the share of the co-sharer of his landlord If the vendor of the plaintiffs had a share in the property, there was no bar to the plaintiffs chasing the share of their vendor and thus claimant is of a pan of the property. It does, not constitute a denial of the title of the landlord on tin date of the tenancy. The plaintiffs themselves have acquired title subsequent to the settlement of the land with them. It cannot also be said that there was any bar to the purchase by the plaintiffs of the shares of some of the co-sharers in the property. What is the effect of the settlement made by defendant No. 1 alone in favour of some of the plaintiff on the right which he alleges to have acquired by adverse possession is a different matter and will be considered when we will deal with the question of adverse possession. Admittedly Ghar­baran Gaur was a co-sharer in the property and if from the lawful co-sharer of the property the tenant purchased the land, it cannot be said that the sale in his favour is a nullity in so far as the share of his vendor is concerned. Section 116 is, therefore, not attracted to the present case. Apart from it, this plea was never taken in the written statement nor did the court below come to any finding on this question. The main ques­tion which has been considered by the court below is the question of adverse possession. The point that the defendant No. 1 acquired the share of Lakhan Gaur by adverse possession was not speci­fically pleaded in the written statement. Mr. The main ques­tion which has been considered by the court below is the question of adverse possession. The point that the defendant No. 1 acquired the share of Lakhan Gaur by adverse possession was not speci­fically pleaded in the written statement. Mr. Choudhuri appearing for the respondents has drawn our attention to the following passage in the writ­ten statement of the defendant No. 1: "The defendant No. 1 acquired his own right after purchase against others adverse possession and became the owner in possession of the whole land in the patta in dispute after payment of land revenue etc." This passage, to our mind, does not mean that the defendant No. 1 claims that he acquired the right of Lakhan Gaur by adverse possession. When the entire paragraph is read it will be clear that the definite case of the defendant No. 1 was that the sale deed though had the name of his mother it was in fact a purchase of the entire property by him alone and he had title to the entire purchased property in his own right. As the court below has gone into this ques­tion, we must consider the arguments of the parties on this issue. It is true that the issue as framed does not specifically refer to the question of adverse possession. The only relevant issue is "Have the plaintiffs their alleged right and title and interest in the disputed lands?" It is settled that in order to constitute adverse possession by a co-sharer against his other co-sharer, the mere fact of pos­session is not enough unless the co-sharer proves an ouster. Ouster can only be proved by alleging and proving by evidence the clear assertion of hostile title to the knowledge of the other co-sharer. The court below has mainly relied upon three cir­cumstances in coming to the conclusion that the defendant No. 1 acquired title to the property by adverse possession. He has firstly referred to the fact that the plaintiffs' predecessor never asserted at any stage any right in the property. He has then considered the circumstance that the plaintiffs "have failed to prove that their predecessor ever participated in the profits of the disputed land. He has firstly referred to the fact that the plaintiffs' predecessor never asserted at any stage any right in the property. He has then considered the circumstance that the plaintiffs "have failed to prove that their predecessor ever participated in the profits of the disputed land. He has also considered the circumstance that admittedly the predecessor-in-interest of the plaintiffs was separate from his other brother and the property was purchased in the name of the mother and defendant No. 1 at the time when the vendor of the plaintiffs was separate from his brother. From the conduct of the predecessor of the plaintiffs it does not appear that he ever asserted any right to the property. He has then relied upon the various settlements made with the tenants of parts of the property by Gharbaran Gaur alone. From these facts he has come to the conclu­sion that the action of the defendant No. 1 con­stituted ouster of the plaintiffs' predecessor. We do not think that any ot those circumstances point­ed out by the Subordinate Judge either taken separately or cumulatively constitute ouster of Lakhan Gaur. The acts done by defendant No. 1 can be referable to his title as a co-sharer and they cannot be the evidence of his assertion of hostile title to Lakhan Gaur. The realisation of the profits of the property by defendant No. 1 can also be referable to his title as a co-sharer. The conduct of the defendant No. 1 can only be regard­ed as an exercise of his possessory right as a co-sharer and not an assertion of his hostile title to Lakhan Gaur. The mere fact that the plaintiffs' predecessor had never participated in the profits of the disputed land is not enough to prove ouster by defendant No. 1. Strong reliance has been plac­ed on the settlements made by defendant No. 1 alone. The deeds of lease executed by the defendant No. 1 in favour of various tenants can be examined from two stand points. It may be argued by the respondents that the declaration made in the deed itself constitutes an assertion of hostile title against Lakhan Gaur and thus the starting point of the ouster will be the date on which these documents were executed. It may be argued by the respondents that the declaration made in the deed itself constitutes an assertion of hostile title against Lakhan Gaur and thus the starting point of the ouster will be the date on which these documents were executed. It may as well be argued that the conduct of the defendant No. 1 by giving a series of settlement of the land alone will by itself be regarded as the assertion of hostile title against the co-sharers. We do not think that there is any substance in this contention. (7) It is necessary at this stage to refer to some of the documents relied upon by the court below. Ext. C is the deed of lease executed by Banka Behari De in favour of Gharbaran Gaur on the 22nd February 1934. This document is printed at page 59 of the paper-book. Particular reference is made to the following passage in this document: "Whereas on your land described in the schedule below, I having intended to live for 10 years by erecting dwelling houses for myself or for rented purposes from 1st of Magh, 1340 B. S. correspond­ing to 15th January 1934, A. D. to the end of 1349 B. S. corresponding to the encl of Pous 1342 have executed this 'Kabuliat'......." Emphasis is laid on the words "your land described in the schedule". It is contended that by admitt­ing that the land which was settled with the tenant was the land which belonged to Gharbaran Gaur, the tenant admitted that Gharbaran Gaur had an exclusive title to the property and as the tenants were some of the plaintiffs and others, the pre­decessor of the plaintiffs had full knowledge of the hostile assertion of title by Gharbaran Gaur. It cannot be denied that Gharbaran Gaur was also a co-sharer and if he called the land which was settled with the plaintiffs as his own it cannot be said that it amounted to assertion of hostile title to Lakhan Gaur. He was undoubtedly a co-sharer in the property and the property belonged to him as much as to Lakhan Gaur. It cannot, therefore, be said that these words constitute any assertion of hostile title against Lakhan Gaur. (8) Reference is then made to a number oil deeds marked Exhibits D/l to D/9, ranging from 1934 to 1952. Only some of these deeds are in favour of the plaintiffs themselves. It cannot, therefore, be said that these words constitute any assertion of hostile title against Lakhan Gaur. (8) Reference is then made to a number oil deeds marked Exhibits D/l to D/9, ranging from 1934 to 1952. Only some of these deeds are in favour of the plaintiffs themselves. The rest of the deeds are in respect of third parties. It cannot be said that the settlement made by Gharbaran Gaur alone in favour of the third parties asserting that he was the owner of the land necessarily con­stitutes a declaration of hostile title to Lakhan Gaur. As we have pointed out earlier, Gharbaran Gaur himself was a co-sharer in the property and it cannot be said that the properties in respect of which he executed the leases were more than his share. Apart from it, it is also clear from the evidence on record that even during the life time of his mother he was managing the property. If after the death of his mother he continued to manage the property as a co-sharer owning a major share in the same, it cannot be said that the settle­ment made by him constitutes an assertion of adverse title to the property. Moreover, the leases executed in favour of the third parties necessarily do not amount to assertion of hostile title to the knowledge of the predecessor-in-interest of the plaintiffs. In this background some of the cases cited by the parties may be examined. The Counsel for the appellants has referred to the case of Balaram Guria v. Shyama Charan Mondal, reported in 24 Cal WN 1057. He has drawn our attention to the facts of the case set out in the body of the judgment at page 1061 of the report. The law has been fully summarised as follows: "It is plain from the judgment of the Sub­ordinate Judge that he has not kept in view the principles applicable to cases of this character, which must now be deemed to be well-settled and beyond controversy. The question has been con­sidered by the Judicial Committee in three recent cases ....... The law has been fully summarised as follows: "It is plain from the judgment of the Sub­ordinate Judge that he has not kept in view the principles applicable to cases of this character, which must now be deemed to be well-settled and beyond controversy. The question has been con­sidered by the Judicial Committee in three recent cases ....... In the first of these cases, Corea v. Appuhamy, Lord Macnaghten cited with approval the dictum of Vice-Chancellor Page Wood in Thomas v. Thomas, namely, that possession is never considered adverse if it can be referred to a lawful title; and held that possession of one coparcener could not be held prima facie as adverse to other coparceners ..... 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 the 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...." This passage is also referred to by the Counsel for the respondent. It is true that ouster may be inferred from a series of transaction and from other circumstances, but whether there has been at ouster or not will have to be inferred from the circumstances of each case. The only circumstance which has been pointed out by the court below and which has been emphasised by the Counsel for the respondent has already been referred to by J in the earlier part of our judgment. The concomitance is quite consistent with the assertion of the right of ownership by Gharbaran Gaur as a cosharer and it does not necessarily constitute ouster of Lakhan Gaur. Each case will have to be determined on the facts of its own. (9) Reference is made to the case of Govindiai v. Rajabai, reported in AIR 1931 PC 48. the facts were that the plaintiffs claimed in 1917 possession of four villages from the defendants who they alleged, were in possession but held as tenants in-common. Each case will have to be determined on the facts of its own. (9) Reference is made to the case of Govindiai v. Rajabai, reported in AIR 1931 PC 48. the facts were that the plaintiffs claimed in 1917 possession of four villages from the defendants who they alleged, were in possession but held as tenants in-common. The defendants' predecessors had not only been in sole possession and reception of the profits of these villages for more than the statutory period, but as regards three of them there were revenue proceedings between the parties in which the defendants claimed mutation in their sole name and denied that the plaintiffs had any interest in them. As regards the fourth village, there was no express evidence of the plaintiffs' title having been denied before the settlement proceedings in 1912 but having regard to the separation of the two branches of the family to which the parties belonged, and to the fact that the plaintiff never had possession or participation of profits in all these four villages ever since his father's death in 1880 and that they were not included in the property handed over to him, by the predecessor of defendants on his attaining majority, he must have known that his interest in them was not admitted Under those circumstances,, it was held that in respect of the four villages there was a clear ouster. If from such circumstances it can be inferred that the predecessor-in-interest of the plaintiffs had knowledge of the denial of his title by the defendant No. 1, the conduct of defendant No. 1 may constitute an ouster; but, in the present case, as we have already pointed out, the conduct of defendant No. 1 by itself does not constitute a denial of the plaintiffs' predecessor's title and in that event the question of knowledge does not arise Even it cannot be said from the materials on record that the plaintiffs' predecessor ever had the knowledge of the fact that the defendant No. 1 -had been denying his title to the property. It is not necessary to discuss the other cast cited by the respondents. It is not necessary to discuss the other cast cited by the respondents. Reference may, however be made to the case of Secy, of State v. Debendra Lal Khan, reported in AIR 1934 PC 23; T. P. J. Palania Pillai v. Amjath Ibrahim Rowther, reporid in AIR 1942 Mad 622 (FB); and, Krishnabai v Parwatibai, reported in AIR 1936 Nag 282. The finding in each case will depend upon its own fact and circumstances. The broad principles are 11 longer in dispute that a co-sharer in order IT establish adverse possession must establish del' ouster and the clear ouster is the open denial of to title of the other co sharers and also assertion o hostile title to the knowledge of the other sharer. We have carefully considered the circumstances of this case and we do not think that the conduct of defendant No. 1 or the leases given by defendant No. 1 to the tenants constitutes ouster of the plaintiffs' predecessor from the land. The name of the plaintiffs' predecessor was mutated in place of the mother as will appear from the jamabandi relating to Patta No. 30/. it is true that the mutation was made late because the sale deed was taken sometime in 1921 as is evidenced by Ext. A and the mother died in 1929. The property was transferred by Lakhan Gaur to the plaintiffs in the year 1948. The muta­tion was effected in the year 1949. But it proves that Lakhan Gaur never accepted that he was not a co sharer in the property and it cannot be said that he admitted that defendant No. 1 was the sole owner of the property and that he did not inherit any property from his mother. A number of oral evidence has been produced in the case; but, to our mind, that is not of much assistance in ascertaining the fact whether defendant No. 1 had acquired the property by adverse possession. Most of the witnesses produced by the defendant No. 1 have stated that the mother of the defendant No. 1 was Wind from the very beginning and was not in a position to pay any part of the sale consideration. Most of the witnesses produced by the defendant No. 1 have stated that the mother of the defendant No. 1 was Wind from the very beginning and was not in a position to pay any part of the sale consideration. The question of adverse possession was not speci­fically pleaded in the written statement and under the circumstances it is likely that the defendant No. 1 did not concentrate on that point and pro­duced no oral evidence, to show that he ever denied to the knowledge of Lakhan Gaur his title to the property. The decision on this issue by the court below, in our opinion, is erroneous. (10) It is then contended that the court below was not right in holding that the plaintiffs were claiming property more than what they acquired under the sale deed. It is not necessary for the purpose of this appeal to go into this question in detail. The plaintiffs have claimed partition of their share of the property in Patta No. 242. If their share in the property of this patta is to be partitioned, whatever they got under the sale deed from defendant No. 1 will be partitioned and they will be given possession over their share. If on the date of the transfer in favour of the plaintiffs, the vendor had share in that patta, to that extent only he was entitled to transfer. Whatever area the plaintiffs purchased from the defendant No. 1, they are entitled to get it partitioned, and they have claimed nothing more than what they have pur­chased under the sale deed. It is, therefore, not necessary at this stage for us to go into that ques­tion. The case of the plaintiffs is that they have purchased the land under the sale deed and they are not claiming any area more than what they have actually purchased. (11) In the result, therefore, we allow this appeal, set aside the decree of the court below and decree the plaintiffs' suit. A preliminary decree for partition will be prepared. The plaintiffs will be entitled to their costs throughout. (12) S. K. DU'ITA, J. : I agree. Appeal allowed.