Judgement JUDGMENT:- This appeal is by the Defendants and is directed against a judgment and decree passed by the Assistant District Judge, Darrang, Tezpur, in Title Appeal No. 34/70. 2. The facts of the case may be briefly stated as follows : An area of 32 Bighas 4 Kathas 8 Lechas of land as described in the Schedule to the plaint originally belonged to one Dehiram, Dehirarm died leaving two sons Bangsi and Dhutiram. Bangsi died leaving his son Mukunda, Mukunda died leaving his widow Laheswari and minor daughter Joymati, Laheswari died in 1372 B. S. corresponding to 1965-66 A.D. Dhutiram died leaving two sons. Madhab, Defdt. No. 1 and Prafulla, Defdt. No. 2. 3. The plaintiffs case is that the suit patta stood in the name of Dehiram. After his death, it stood in the name of Bangsi, and after his death, Mukunda and Dhutiram had equal shares. During his lifetime, Mukunda was living jointly with his uncle Dhutiram and possessed the land in Ejamali till the death of Dhutiram who died about 17 or 18 years ago before filing of the suit. Mukunda died about 8 years before the institution of the suit. After the death of Mukunda, Laheswari returned to her parents home, but was getting half share of the crops grown on the land for the maintenance of herself and her minor daughter, the plaintiff, till her death. Before her death, the plaintiff had been given away in marriage, in 1368 B.S. Dhutiram died three years before filing of the suit leaving the two defendants. The plaintiff attained majority on 15th Bahag 1373 B. S. on attaining majority, she claimed half share of the property separately from the defendants, but they refused. The plaintiff has further alleged that her name had been mutated in respect of her share on 11-6-1969. She has filed the present suit for declaration of her title and recovery of khas possession. 4. The two defendants have contested the suit. In their written statements, they have stated that Mukunda died about 20 years ago and one year after his death, Laheswari left her husbands place for good, relinquishing her claim to the share of her husbands properties in favour of Dhutiram and returned to live in her parents home as early as 13-6-1939, and since then neither Laheswari, nor the plaintiff had any possession in the suit land. After returning to her parents home, Laheswari filed a number of mutation cases in respect of her share in the suit land; but her prayers for mutation were rejected by the Sub-Deputy Collector concerned. As, thereafter, she did not file any Civil Suit, her claim is now barred by limitation and the defendants have acquired title to the suit land by adverse possession. 5. On the basis of the pleadings, the learned Munsiff framed a number of issues, of which three related to acquisition of title to the suit land by adverse possession by the defendants. 6. After trial the Munsiff found the suit to be barred by limitation and dismissed the suit. On appeal, the learned Assistant District Judge reversed the judgment and decree of the Trial Court, and decreed the plaintiffs suit. Hence this appeal. 7. The first point urged by Mr. K. Sarma, learned counsel for the appellants is that the finding of the lower appellate Court that the plaintiffs suit was not barred by adverse possession was erroneous inasmuch as, he submits, this finding, albeit of fact, is based on the omission from consideration of material documents, namely, Exts. Ka, Kha, Ga, Gha and Younga. 8. Before the consideration of the submission of learned counsel, let us first examine the law on the point. 9. The law of adverse possession between co-sharers is well settled by the Supreme Court. In AIR 1971 SC 376 their Lordships have held that the possession of land by a co-owner, however long it might be, cannot confer on him any right unless it is adverse to the two other co-owners. In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in AIR 1957 SC 314 their Lordships of the Supreme Court have held:- "To prove adverse possession, "the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor." "But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment of one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title to a co-heir by his adverse possession." In the case of Gulam Ghouse Mohiuddin w. Ahmad Mohiuddin Kamisul Qadri reported in AIR 1971 SC 2184 their Lordships have held :- "Possession of one Co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them." Considering a number of decisions of the Privy Council and other authorities, this Court in AIR 1962 Assam 137 held:- "A co-sharer in order to establish adverse possession must establish clear ouster which amounts to the open denial of the title of the other co-sharers and also assertion of hostile title to the knowledge of other co-sharer." 10. The submission of learned counsel for the appellants, is that the limitation started from the date of the execution of Ext.Ka. This document Ext.Ka was admitted under objection. Ext.Ka purports to be a deed of relinquishment executed on 13-6-1949. It is unregistered. It is conceded by learned counsel for the appellants that it is not admissible as a deed of relinquishment as it needs registration under Section 17 of the Registration Act. This document Ext.Ka was admitted under objection. Ext.Ka purports to be a deed of relinquishment executed on 13-6-1949. It is unregistered. It is conceded by learned counsel for the appellants that it is not admissible as a deed of relinquishment as it needs registration under Section 17 of the Registration Act. But he submits that the document is admissible under the proviso to Section 49 of the said Act for collateral purposes. The relevant line in Ext.Ka is as follows :- "I relinquish my title to the property moveable or immovable left by my husband." The document, therefore, purports to transfer her title to the land left by her husband. But it does not speak of any possession as submitted by learned counsel. The Proviso to Section 49 of the Indian Registration Act is not applicable to this case. In the result, I hold that Ext.Ka is inadmissible in evidence and that it was illegally admitted by the learned Trial Court. 11. Learned counsel for the appellants has further submitted that the learned Lower Appellate Court did not consider Exts."Kha", "Ga" and "Younga". The submission of the learned counsel is not correct. The learned lower appellate Court has considered the above documents. He has found that Ext."Kha" is the order of the mutation case No. 267/ 49-50 and Ext.Ga is the order in mutation case No. 266/49-50. He has found that Ext.Ga shows that Laheswari had no possession in the land and as such her prayer for mutation was disallowed. With regard to Ext. "Younga", he has found that Ext. "Younga" is the order in mutation case No. 57/49-50 and Ext. E "Gha" is the order in mutation case No. 76/49-50. He has found that Ext."Kha" shows that Laheswari made the application for mutation on behalf of the plaintiff by right of inheritance. The Sub-Deputy Collector disallowed mutation on the ground that the plaintiff could not claim mutation so long as her mother Laheswari was alive. It is not correct, therefore, to say that Exts. Kha and Younga were not considered by the appellate Court below. They have been considered and their value assessed. In addition, the learned lower appellate Court has also considered Ext. Jha, which is the certified copy of Jamabandi showing the mutation of the name of the plaintiff in respect of the suit land in place of Mukunda. Ext. Kha and Younga were not considered by the appellate Court below. They have been considered and their value assessed. In addition, the learned lower appellate Court has also considered Ext. Jha, which is the certified copy of Jamabandi showing the mutation of the name of the plaintiff in respect of the suit land in place of Mukunda. Ext. Jha shows that the plaintiffs name was mutated on 11-6-1959. He has also considered Ext. Niya series, which were revenue paying receipts showing payment of revenue in respect of suit land. These documents show payment of revenue on behalf of Dhutiram and others. He has found that others in the context mean only Mukunda and his successors. On a consideration of these documents and the oral evidence on record, the learned lower appellate Court has found that in the mutation case, the objection was only with regard to the possession of Laheswari and not to her title. He has found that Ext. Ga does not show that the defendant claimed his exclusive title over the suit land. He has found that the defendant did not raise any hostile title in respect of the suit land." His ultimate finding is that the defendant failed to establish adverse possession in respect of the suit land. The above finding of the learned appellate Court below is a finding of fact and it cannot be upset in a Second Appeal, even if it be erroneous. The learned counsel referred to Section 14 of the Hindu Succession Act, which provides;- "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner." He submitted that as the plaintiff, and before her, her mother was not in possession, she was not entitled to title. But it is settled law that amongst co-heirs, possession of one co-heir is the possession of the other. Even if the plaintiff, and before her, her mother was not in actual physical possession, and the defendants were in possession of the suit property in the eye of law, the defendants were in possession on their own behalf as well as on behalf of the plaintiff, and before her, her mother. In other words, the plaintiff, and before her, her mother was in constructive possession of the land in suit. In other words, the plaintiff, and before her, her mother was in constructive possession of the land in suit. The learned Appellate Court below, therefore, committed no error when it held that the suit had not been barred by limitation and that the defendants had acquired no title to the suit land by adverse possession. 12. The only other submission of the learned counsel is that the decree for khas possession is untenable. The suit was only for declaration of title to half share of the property and for delivery of khas possession. It was not for partition. Without partition, the plaintiff is not entitled to get khas possession. Learned counsel for the respondent has very fairly conceded to this proposition. In the result, the decree of the learned lower appellate Court is modified to the extent that the plaintiffs title to half share of the suit land is declared; she will get joint possession with the defendants. 13. With the above modification in the decree, the appeal is dismissed. I make no order as to costs. Order accordingly.