JUDGMENT : ( 1. ) THIS is a second appeal by the defendants arising out of a suit for partition of a house. ( 2. ) PARTIES are inter-related being the descendants of the deceased Dhodiba, as would appear from the genealogical tree given below :- ( 3. ) DHODIBA had five sons, Baba Saheb, Amritrao, Yeshwantrao, Bala saheb and Baburao, the original Plaintiff in this case. Ali of them are now dead. Baba Saheb was the eldest son. Respondents No. 1 to 6 are the legal representatives of the deceased Baburao. ( 4. ) THE case of Baburao, the original plaintiff, as laid in the plaint, was that the parties were members of a joint Hindu family. The house in suit, bearing municipal No. 5/12, was the property of the joint family having been acquired by Dhodiba. The house has been in occupation of defendants No. 1 to 8, who are appellants in this case. As some of the defendants started making construction in the house in assertion of a hostile title in May 1962, Baburao instituted a suit for partition on 21-6-1962 claiming half share therein. ( 5. ) THE suit was resisted by the defendants appellants on a number of grounds. They denied that it was the self acquired property of Dhodiba and claimed to be in adverse possession thereof. It was further pleaded that in the year 1945, the plaintiff had filed a suit for partition of this very house which ultimately abated and, therefore, the present suit was barred. They also pleaded that the suit was barred by limitation. ( 6. ) THE trial Court held that the suit was not barred under Order 22, rule 9, Civil Procedure Code, but dismissed the suit on other grounds. In appeal, the learned Additional District Judge set aside the decree of the trial court and passed a preliminary decree for partition in favour of the plaintiff, holding that Baburao was entitled to half share in the suit house, which was the joint family property. Being aggrieved by this decision, the defendants have preferred this second appeal. ( 7. ) THE first point that was urged by Shri M. L. Gupta, learned counsel for the appellants, was that this suit is barred under sub-rule (1) of Rule 9 of order 22, Civil Procedure Code, as the earlier suit filed by the plaintiff for partition was dismissed as abated. ( 7. ) THE first point that was urged by Shri M. L. Gupta, learned counsel for the appellants, was that this suit is barred under sub-rule (1) of Rule 9 of order 22, Civil Procedure Code, as the earlier suit filed by the plaintiff for partition was dismissed as abated. It is not disputed that the plaintiff had, in the year 1945, instituted a suit for partition along with Yeshwantrao since deceased, claiming 2/3 share in the property, vide certified copy of the plaint dated 27-8-1945 (Ex. D-1 ). It is also not disputed that that suit ultimately abated. The question, therefore, is whether, in these circumstances, the present suit is barred. The trial Court held that the suit was not barred and it appears that this finding was not challenged in the first appeal because there is no reference to it in the judgment of the first appellate Court. However, since it is a question of law, I propose to consider it. ( 8. ) IN T. C. Mukerji v. Afzal Beg (A IR 1916 All. 1.), it was held that a fresh suit for partition is not barred even where an earlier suit was dismissed as compromised because the right to bring a suit for partition, like other suit, is a continuing right incidental to the ownership of joint property. This decision was followed by the Patna High Court in Dilo Rana v. Kunj Behari Prasad (AIR 1948 Pat. 244.), and it was held that the plaintiffs right to partition will subsist even after abatement of a previous suit for partition because a partition is a recurring cause of action so long as the property remains joint. A similar view was expressed by the Pepsu high Court in Devi Sahai v. Nanar (AIR 1955 Pap. 28. ). ( 9. ) IT is, therefore, clear that the right to bring a suit for partition is a continuing right incidental to the ownership of joint property. This right subsists so long as the property is not partitioned. A co-sharer may at one time desire partition and institute proceedings. He may then change his mind and drop the proceedings This would not debar him from bringing a fresh suit for partition if, under fresh circumstances, he considers a partition desirable or necessary. I, therefore, hold that this suit is not barred under Order 22, rule 9, Civil Procedure Code. He may then change his mind and drop the proceedings This would not debar him from bringing a fresh suit for partition if, under fresh circumstances, he considers a partition desirable or necessary. I, therefore, hold that this suit is not barred under Order 22, rule 9, Civil Procedure Code. ( 10. ) THE next point urged by Shri Gupta was that the plaintiff had failed to show that the house in suit was joint family property. He pointed out that in the plaint it is stated that the house was acquired by the common ancestor Dhodiba but there was no evidence to that effect. It is no doubt true that the plaintiff failed to adduce any evidence to show that the house was acquired by Dhodiba but it is clear from the evidence on record that the house was joint family property and this was admitted by the defendants in their written statement in the earlier suit, vide Ex P-1. This was an unqualified admission and has not been, in any way, rebutted. The learned additional District Judge was, therefore, perfectly right in basing his finding on this point on the admission of the defendants, coupled with the other circumstances on record. ( 11. ) SHRI Gupta further urged that the finding of the first appellate court that the possession of the appellants over the house in suit was not adverse to the plaintiff and that the suit was not barred by time was erroneous and liable to be set aside. The question of adverse possession is a mixed question of law and fact. So far as the facts are concerned, it was not disputed before me that the appellants had been in exclusive possession of the house for over 12 years. The learned Additional District Judge held that in the absence of any assertion by the appellants of a hostile title adverse to the plaintiff, who was admittedly a joint owner of the property and as such the possession of the appellants cannot be treated as adverse to the plaintiff. It was urged that this view is not correct and mere exclusive possession, in the circumstances of this case, is sufficient to establish adverse possession on the part of the defendants-appellants. In support of this contention, Shri Gupta relied on a number of decisions which I shall presently consider. ( 12. It was urged that this view is not correct and mere exclusive possession, in the circumstances of this case, is sufficient to establish adverse possession on the part of the defendants-appellants. In support of this contention, Shri Gupta relied on a number of decisions which I shall presently consider. ( 12. ) IN N. Varada Pillai v. Jeevaralhnammal (AIR 1919 PC 44.), it was held that an adverse possession of a person against another, once begun before they became co owners, does not cease to be so on their becoming co owners. But that is another matter. This decision is, therefore, of no help to the appellants. Another decision relied upon by Shri Gupta is Govindrao v. Bajabai (AIR 1931 PC 48,) In that case, exclusion from profits for more than 13 years, coupled with denial of title in previous litigation, was considered sufficient to establish adverse possession against a tenant-in-common. In this case, there is no evidence to show that the plaintiffs title was denied at any time. Moreover, there can be no question of exclusion from profits because the house in question is not yielding any income and, therefore, there can be no question of the plaintiff claiming any share in the income. ( 13. ) SHRI Gupta also relied on a decision of the Nagpur High Court in krishnabai v. Parwatibai (A IR 1936 Nag. 282.), but I fail to see how it is helpful to him. From the observations made therein at page 283, it is clear that the argument that in the case of a co-owner there must be an express ouster and that mere non participation in the profits and non enjoyment of the property is not enough to destroy title, was accepted. It was held in that case that although the aforesaid facts do not necessarily indicate ouster, they may do so coupled with other circumstances, such as, dealing with the property as an exclusive owner by alienating it by sale or otherwise. In this case, there is nothing to show that the appellants, at any time, alienated any part of the property in suit by transfer or otherwise. This decision also is, therefore, of no help to the appellants. Similarly, the decision of the Calcutta High Court in Debaprata Ghose v. Jnanendra (AIR 1960 Cal. 381), does not, in any way, support the contention of Shri Gupta. This decision also is, therefore, of no help to the appellants. Similarly, the decision of the Calcutta High Court in Debaprata Ghose v. Jnanendra (AIR 1960 Cal. 381), does not, in any way, support the contention of Shri Gupta. From the observations in paragraph 12, it is clear that an open assertion of hostile title, coupled with exclusive possession and enjoyment of the property was considered necessary to establish adverse possession. A similar view was expressed in Phul Kumari v. Sambhu Prasad ( AIR 1965 Pat. 87 .), on which Shri Gupta relied. In that case, a co-sharer in possession had been treating the entire property as his own and was not recognising the rights therein of the other co-sharers, who were out of possession and were aware of the hostile attitude. In these circumstances, adverse possession was held to be established. It is thus clear that mere exclusive possession howsoever long by a co-owner is not sufficient to establish his adverse possession against the other co-owners. ( 14. ) IN Ammer Bibi v. Chinnammal ( AIR 1968 Mad. 83 .), it was observed in paragraph 3 that where the parties are co-owners, possession of one is possession of all and for possession to be adverse, there must be something more than mere exclusive occupation by one of the co owners. It was further observed in the same paragraph as under : "the character of possession that would bar a co-owner must be such that one can infer from it an intention by the co-owner in occupation to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property. " ( 15. ) A similar view was expressed by this Court in Vidya Bai v. Narayandas (1971 MPLJ 925=1971 JLJ 749. ). The following observations in paragraph 15 are pertinent: "a co-owners possession of the common properly is not prima facie adverse against another co-owner, because such possession is considered as one on behalf of all the co owners, except when there is clear proof of ouster or assertion of a hostile title. " ( 16. ) THEIR Lordships of the Supreme Court, in Udaychand v. Subodh gopal (A I E 1971 SC 376.), held that possession of a co-owner however long does not confer on him any right, unless it is adverse to the other co-owners. ( 17. " ( 16. ) THEIR Lordships of the Supreme Court, in Udaychand v. Subodh gopal (A I E 1971 SC 376.), held that possession of a co-owner however long does not confer on him any right, unless it is adverse to the other co-owners. ( 17. ) THUS, from a careful consideration of the aforesaid decisions, it would appear that the question of adverse possession of a co-owner is governed by the following principles :- (1) The possession of a co-owner is ordinarily possession on behalf of all the co-owners and mere exclusive possession of a co-owner cannot be considered as adverse to the others. (2) In order to establish adverse possession, it must be shown that the intention of the co-owner in occupation was to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property. (3) The assertion of a hostile title need not be by any express declaration but may be inferred from the conduct and other circumstances which would give to the other co-owners a clear indication of hostile animus. ( 18. ) APPLYING these principles to the present case, it would appear that the appellants have failed to establish that they were in adverse possession of the property. As pointed out above, there is nothing to show that at any stage they denied the plaintiffs title. In fact, in the written statement dated 29-10-1945, in the earlier suit, vide Ex. P-1, Sadashivrao, predecessor in title of the appellants, had clearly admitted that the house was a joint family property and that the plaintiff could obtain his share by partition at any time (vide paragraphs 3 and 5 of the written statement ). Shri Gupta urged that this admission was qualified inasmuch as it was the case of the appellants that there was another house belonging to the joint family, which was in possession of the plaintiff and that if at all a partition was to take place, both the houses should be partitioned. That would, however, not make any difference so far as the plaintiffs right to claim half share in the suit house is concerned, particularly because in this suit it was not expressly pleaded that the other house should also be brought into the hotchpotch for purposes of partition. The appellants having failed to raise that plea cannot now raise it in second appeal. ( 19. The appellants having failed to raise that plea cannot now raise it in second appeal. ( 19. ) LEARNED counsel for the plaintiff respondents was also at pains to point out the evidence on record which goes to show that the possession of the defendants-appellants was not exclusive inasmuch as the deceased Yeswantrao also lived in the house for some time until his death in 1957 after retirement. From the discussion of the evidence in paragraph 12 of the judgment of the first appellate Court it appears that the learned Additional District Judge was of the view that the possession of the appellants was not even exclusive. In any case, there was no ouster of the plaintiff. This is a finding of fact and appears to be reasonable in the circumstances of this case. I, therefore, agree with the finding of the learned Additional District Judge that ouster of the plaintiff has not bean established and that the possession of the defendant-appellants was not adverse to the plaintiff. The suit was, therefore, not barred by time. ( 20. ) SHRI Gupta also urged that the appellants, who had been living is the house had made certain improvements and that the plaintiff could not, in a partition, claim any share in the improvements made by them. If the appellants had made any improvements in the house at their own cost, that can be taken into consideration and equities can be adjusted by allotting the portion, in which improvements have been made, to the appellants in the partition. ( 21. ) ANOTHER point urged by Shri Gupta was that the plaintiff could claim only 1/3 share and not 1/2 share in the property, but there appears to be no substance in this contention. Shri Sahasbrabudhe pointed out that the plaintiff could in fact claim 2/3 share in the property, because he was joint with Yeshwantrao who died issueless. Bat even assuming that Yeshwantrao was separate and his interest passed by succession, the deceased Baburao the original plaintiff, was a preferential heir under the Hindu Succession Act. The plaintiff is thus, in any case, entitled to half share in the property. ( 22. ) NO other point was pressed before me. ( 23. ) THE appeal, therefore, fails and is hereby dismissed with costs. Counsels fee according to scale, if certified. Appeal dismissed.