JUDGMENT : R.N. Misra, J. - The Plaintiff is in appeal against a confirming judgment of the learned Subordinate Judge of Bhadrak in a suit for partition. 2. He claimed that he purchased 24 decimals out of the properties belonging to the Defendants' family under a registered sale deed dated 12.1.1935 (Ext. 4) from Sadhabani, the widow of Bidei. The relationship of the members of the family including the vendor of the Plaintiff would appear from the genealogy appended below: Table Missing File No. OR700182 According to the Plaintiff, the two brothers Sadei and Bidei separated in mess and residence prior to the current settlement. 3. Defendants 1 and 2 contested on the ground that there was never any partition in the family and Sadei was the exclusive owner in possession of all the family properties as he survived Bidei. Bidei having died before 1937 Sadhabani had no right to alienate in the disputed property. The Defendants also claimed that Ext. 4 related to homestead and even if the sale was valid. Section 4 of the Partition Act was applicable and the Plaintiff being a stranger was not entitled to claim the property. 4. The trial Court found that the Plaintiff had acquired no title to the disputed property and was never in possession; the Emit was thus barred by limitation. It also found that Section 4 of the Partition Act would apply to the case, but the question did not arise as the Plaintiff bad no title by alienation. 5. In the lower appellate Court the following questions were canvassed: (1) Whether the two brothers Sadei and Bidei were separate in status; (2) Whether the Plaintiff was in possession of the disputed property since the date of his purchase in 1935; (3) Whether Section 4 of the Partition Act had any application. The learned Appellate Judge by reapportioning the evidence attached weight to Exts. 5 to 7 and came to hold that there had been separation between Sadei and Bidei. He found that Sadhabani was competent to make the alienation. He, however, affirmed the finding of the trial Court that the Plaintiff was not in possession at any point of time and thus even if he had antecedent title he had lost the same by being out of possession for more than 12 years prior to the suit. He found that Sadhabani was competent to make the alienation. He, however, affirmed the finding of the trial Court that the Plaintiff was not in possession at any point of time and thus even if he had antecedent title he had lost the same by being out of possession for more than 12 years prior to the suit. The learned Appellate Judge affirmed the other conclusion on the application of Section 4 of the Partition Act. Thus he dismissed the appeal and confirmed the judgment of the trial Court. 6. In Second Appeal Mr. Mukherji for the Appellant contends that once title of the Plaintiff by Ext. 4 is found he must be taken to have become a co-owner. It is well settled that until ouster is established a co-owner must be deemed to be in possession and as such the conclusion reached in the lower appellate Court that the Plaintiff was found to lose having failed to establish by evidence his possession within 12 years before the suit was erroneous. No substantial contention was advanced on the question of application of solution 4 of the Partition Act. 7. The only question to examine in the Second Appeal is as to whether it is necessary for the Plaintiff who must be deemed to be a co-owner by virtue of his purchase under Ext. 4 to establish possession within 12 years prior to the suit in order to have partition. 8. Mr. Mukherji placed reliance on two decisions one of this Court and the other of the Patna High Court. In Bhimayya v. Kundana Bibi 22 C.L.T. 51 Narasimham and Mohapatra, JJ. Held: The only point for consideration in the second appeal is whether on the evidence adduced in the case the lower appellate Court was justified in holding that a case of ouster was made out. In the deposition in the present litigation the Plaintiff stated that he was never in possession of the suit house and that Defendant 3 was in possession ever since the date of his purchase on 3-10-1934. Doubtless, this admission of the Plaintiff by itself would not suffice to show that he lost his title by ouster. In the deposition in the present litigation the Plaintiff stated that he was never in possession of the suit house and that Defendant 3 was in possession ever since the date of his purchase on 3-10-1934. Doubtless, this admission of the Plaintiff by itself would not suffice to show that he lost his title by ouster. It is well known that as between two co-sharers mere possession by one co-sharer would not constitute ouster unless there is some material to justify an inference that he either expressly or by implication refused to allow the other co-owner to be in possession or to participate in the enjoyment of the joint property. This principle of ouster as amongst the original co-sharers applies with equal force as against the alienees from the co-sharers also. Their Lordships quoted with approval the rule laid down by a Division Bench of the Patna High Court in Dipnarain Rai and Others Vs. Pundeo Rai and Others. Ray, J., as he then was, concluded in a discussion of the legal position: As regards co-owners, the law is that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of a transferee from a co-owner who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of a transfer. In the present case the learned Appellate Judge in paragraph 5 of his judgment has stated: The question of validity or otherwise of Ext. 4 is not raised before this Court. It, therefor"" follows that Ext. 4 was otherwise a valid sale deed. Challenge was limited OD the only ground that the vendor had no saleable interest on the hasis that Sadei and Bidei were joint at the time of Bidei's death and Bidei having died prior to 1937 his interest passed on to Sadei by way of survivorship. The learned Appellate Judge negatived the claim of jointness and found that Sadei and Bidei were separate in status. Thus Sadhabani had the right to be in possession and had an interest in the property. In view of the fact that challenge to Ext. The learned Appellate Judge negatived the claim of jointness and found that Sadei and Bidei were separate in status. Thus Sadhabani had the right to be in possession and had an interest in the property. In view of the fact that challenge to Ext. 4 was not offered on any other ground it must be taken to be otherwise a valid sale deed. It would, therefore, follow that under Ext. 4 a co-owner's title was acquired by the Plaintiff in 1935. There is no plea of ouster raised in the suit. The Courts below have not examined the question of ouster either. On the aforesaid principal of law as indicated in the two decisions with which I am in agreement, it reasonably follows that the Plaintiff as co-owner is entitled to exercise his right on the date of the suit and a suit for partition at his instance is sustainable. 9. No challenge, as I have already indicated, was advanced on the score of the application of Section 4 of the Partition Act. It would thus follow that Section 4 of the Partition Act is applicable and the disputed property being a homestead the Defendants are entitled to maintain their integrity and keep out the Plaintiffs stranger purchaser. 1a My findings, therefore, are: (1) The Plaintiff acquired title to the disputed property under Ext. 4 and became a co-owner along with the others. (2) He is entitled to ask for partition and his present suit is not barred by limitation. (3) The disputed property being a part of the home stead the claim, u/s 4 of the Partition Act is sustained. 11. I would conclude these matters and call upon the trial Court to fix the value of the property and require the Defendants to buy out the Plaintiff on such terms and conditions as determined by it in accordance with law. The appeal is allowed. There would be no order as to costs throughout. Final Result : Allowed