Judgment Chaudhary Sia Saran Sinha, J. 1. In the suit, which is the subject-matter of this appeal, the plaintiff (appellant) sought for a declaration that the order of the anchaladhikari mutating the name of the defendants over 1/2 interest of the suit property was without jurisdiction, illegal and void, the suit property being 16 dhurs and odd in area appertaining to khata 168 khasra 1493 of village Raxaul which undisputedly contains a pucca house over its major portion. 2. According to the plaintiff (appellant), one Manager and Sheogobind were full brothers. One Ramchhatri was the son of Manager who died issueless. Ramauttar, father of plaintiff (appellant) Hussaini is son of Sheogobind. Another ramachhatri son of Pratap was full brother of the wife of Ramautar, his wife also being the daughter of Pratap. Thus we are concerned in this case with two ramchhatri, one Ramchhatri son of Manager and another Ramchhatri, son of pratap. It is undisputed that the suit property minus the house which wai admittedly constructed long after acquisition ,was acquired by settlement from one mr. Hardson, the 16 annas proprietor of village Raxaul, under a registered Patta ext.14 and kabuliat Ext. F, each executed in the year 1925. It is also undisputed that the registered patta dated 23rd August, 1925. (Ext.14) stood in the name of Ramautar (father of the plaintiff) and one Ramchhatri and the kabuliat (Ext. F) was also executed by these two persons. According to the case of the plaintiff, this Ramchhatri was son of Manager and on his dying issucless his 8 annas interest in the suit property also devolved on him. The suit was filed on 9-1-1968. On 11-1-196 plaintiff got the plaint amended and he set up a case therein that ramchhatri son of Pratap, who was engaged to get those deeds executed brought the scribe in collusion and got the fathers name of Ramchhatri mentioned there as Pratap and falsely impersonated Ramchhatri son of Manager before the Sub-Registrar. According to the further case of the plaintiff, he alone was coming in possession of the entire suit property by paying rent and municipal taxes and it was he who constructed a pucca house thereon, a portion of which is in occupation of the tenants. According to the further case of the plaintiff, he alone was coming in possession of the entire suit property by paying rent and municipal taxes and it was he who constructed a pucca house thereon, a portion of which is in occupation of the tenants. The plaintiff applied for mutation of his name before the Anchaladhikari of Raxaul in place of the name of his father ramautar and Ramchhatri in 1961 and his name was mutated in their place. Subsequently, however, in 1957 the Anchaladhikari entered the name of the defendant also over the suit land without any jurisdiction to do so and therefore, the plaintiff filed the instant suit. 3. The defendants represent the branch of Ramchhatri son of Pratap, defendants 3 to 5 being sons of Ramchhatri son of Pratap. The defendants contested the suit alleging, inter alia, that there was no Ramchhatri son of Manger in the family of the ancestors of the plaintiff and he is a fictitious person. According to them, there was one Ramchhatri son of Pratap which Ramchhatri is the father of defendants 3 to 5. Denying the case of the plaintiff regarding false impersonation etc. , they asserted that the suit property was taken in settlement under a registered patta and kabuliat which stood in the name of Ramautar father of the plaintiff and Ramchhatri son of Pratap and thus each of them had g annas interest in the suit property. They claimed to be in joint possession of the suit property with Ramautar and after his death with the plaintiff since all along. Their further assertion was that the house standing in the suit land was constructed by them as also the plaintiff. Thus they asserted that the subsequent mutation made by the Anchaladhikari mutating the name of the defendants along with the plaintiff was legal and valid. 4. On the pleadings of the parties seven issues as appearing in the trial court judgment were framed, there being no issue either regarding limitation or acquisition of title by the plaintiff by adverse possession. 5. The trial court held inter alia, that Ramchhatri mentioned in the patta and kabuliat was uncle of the plaintiff, that is to say, son of Manager not son of pratap and it was the plaintiff who constructed the house standing thereon. 5. The trial court held inter alia, that Ramchhatri mentioned in the patta and kabuliat was uncle of the plaintiff, that is to say, son of Manager not son of pratap and it was the plaintiff who constructed the house standing thereon. He, therefore, held that the defendants had no right, title and interest over the suit land and that the order of the Anchaladhikari mutating the name of defendants over 1/2 of the suit property was without jurisdiction. Ultimately he decreed the suit. 6. The defendants carried the matter in appeal. The lower appellate court, on a consideration of the evidence adduced, found that the plaintiff failed to establish the existence of Ramchhatri in his family as also the story of false impersonation. Rather his finding was that the same was executed in the name of Ramautar father of the plaintiff and Ramchhatri son of Pratap. This is a finding of fact and it was, therefore, rightly not assailed by the learned counsel for the appellant. 7. While discussing the evidence regarding possession, the plaintiff claiming exclusive possession and the defendants joint possession with the plaintiff, the lower appellate court stated in its judgment that a large number of witnesses for the defendants, referred to in paragraph 23 of the judgment, fully supported the evidence of D. W.19 Jamuna Prasad (defendant no.4) on the point of joint possession claimed by the defendants and the construction of the house standing thereon by the plaintiff as also the defendants and further observed that there was nothing in their evidence for which the same should be disbelieved. After discussing the evidence of the witnesses for the plaintiff, he found their evidence on the point of induction of tenants in the house standing on the suit property to be unreliable and, ultimately, he held in para 28 of the judgment that the oral evidence produced on behalf of the defendants including those of the punch of the original village of the plaintiff are much more convincing than the evidence produced on behalf of the plaintifi. Lastly, he observed that even if it be admitted for the sake of argument that the plaintiffs had been able to produce more papers in proof of their possession over the suit land and the house standing thereon, simply on the ground of possession, the plaintiff cannot seek declaration as prayed for by them since he had failed to set up any plea of acquisition of title by adverse possession and in such circumstances even assuming that the defendants are not in actual physical possession, the possession of the plaintiff over the suit land and the house standing thereon would be deemed to be the possession of his co-sharers, namely the defendants as well. On these findings he held that the plaintiff was not entitled to the declaration sought for by him in the plaint and he, therefore, allowed the appeal, and set aside the judgment and decree of the trial court, thereby dismissing the plaintiffs suit. The plaintiff has carried the matter in the second appeal. 8. Only two contentions were raised by the learned counsel for the appellant before this Court. His first contention was that the lower appellate court was wrong in finding that the plaintiff had not set up the plea of acquisition of title by adverse possession in the plaint. The second contention was that even if the plaintiff be deemed not to have pleaded the question of adverse possession still on the evidence adduced, the lower appellate court should have given a finding regarding acquisition of title by the plaintiff by adverse possession over the 8 annas interest of the defendants, and the lower appellate court having failed to do so, the case should be remanded to it. These two contentions were resisted by the learned counsel for the respondent. 9. On the findings of fact which have become final and which was not assailed before this court, the settlement was taken not by the father of the plaintiff and Ramchhatri son of Manager but by Ramautar father of the plaintiff and Ramchhatri son of Pratap, each acquiring title to the disputed property to the extent of 8 annas. Thus the defendants would be co sharers of the plaintiff to the extent of 8 annas in the disputed property. Thus the defendants would be co sharers of the plaintiff to the extent of 8 annas in the disputed property. It is well-settled by now that where party to the action are co-sharers and as under the law, possession of one co-sharers is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. In the case of mohammad Baqar and other, Appellant V/s. Naim-un-Nisa Bibi and others, respondents reported in A. I. R.1958 SC 548, it has been held that as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. Again in the case of Shanbhu Prasad Singh. Appellant v Ms, phool Kumari and others, Respondent a reported in 1972 PLJR 100, the supreme Court has held that as between co-sharers the possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. Their Lordships further observed that as between them, that is to say, co-sharers, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. The principle that the possession of one co-sharer is the possession of all till the possessing co-sharer openly asserts a hostile title coupled with exclusive possession and enjoyment to the knowledge of the other co-sharers has been extended even to khas possession in respect of the benefits under section 6 of the Bihar Land Reforms Act, as will be evident from the two decisions of this Court, one in the case of Sidheshwr Mukherji, Appellant V/s. Bhubneshwar Prasad and others, Respondents reported in 1965 B. L. J. R.452 and the other a Full Bench decision of this court in the case of Ramrudhar Singh (Defendan appellant) V/s. Dileshwar Singh and others (Plaintiffs-Respondents) reported in 1964 B. L. J. R.823. Actual driving of a co-owner will, no doubt, clearly be an oaster but such physical eviction need not be insisted upon in every case. Actual driving of a co-owner will, no doubt, clearly be an oaster but such physical eviction need not be insisted upon in every case. But in order to constitute ouster, there should be a refusal, express or implied, by the co-owner in possession, to allow the other co-owners to participate in the enjoyment of the property. Hence the test to see if there is an ouster is to see if the co-owner in possession has openly and unequivocally and to the knowledge of all co-owners, denied their title to the property. Thus evidence which may be sufficient to establish adverse possession by a stranger may be totally insufficient to prove adverse possession by one co-owner against othsr co-owners. 10. In this connection the learned counsel for the appellant pointed out the assertions made in paragraphs 4 and 5 of the plaint. The case made out in paragraph 4 in the plaint simply was that the settlement of the suit land was made with the father of the plaintiff and Ramchhatri son of Manager and that the plaintiff got himself mutated in the landlords office and the office of the notified Area Committee and paid rent and municipal taxes and constructed the house standing thereon and thus the entire suit land with the house standing thereon had been in exclusive possession of the plaintiff without any participation of anybody else". Paragraph 5 merely states about mutation of the name of the plaintiff without any objection from any corner and his paying rent to the State of Bihar. The statements made in paragraph 4 of the plaint was described in para 10 of the statement as being not correct. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. As a matter of fact, the exclusive possession without any participation of anybody else set up in para 4 of the plaint is not based on any theory of adverse possession or ouster but is based on the plaintiffs case that the settlement was made in the name of the father of the plaintiff and his aganotic relation Ramcuatri son of Manager which story has been disbelieved by the lower appellate court. In the case of P. Lakshmi reddy, Appellant V/s. Laxmi Reddy, Respondent reported in AIR 1957 S. C.314 it was held 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. 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 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. It was also held that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. Again in the case of Shambhu Prasad Singh, Appellant V/s. M t. Phool Kumari and others respondents reported in 1972 P. L. J. R.100 the Supreme Court held that as between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers Therefore, to constitute adverse possession, ouster of the non-possessing co sharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title complied with exclusive possession and enjoyment by one of them to the knowledge of the other keeping all these in view, as rightly contended by Shri Kailash Roy, learned counsel for the respondent, the assertions made in paragraphs 4 and 5 of the plaint fall short of the requirements of the plea of advere possession and ouster and it cannot, therefore, be said that the plaintiff had set up the plea of acquisition of title by adverse possession in the plaint. This contention, therefore,- fails as being without substance. 11. This contention, therefore,- fails as being without substance. 11. Coming to the second contention, three decisions of this Court were relied upon by the learned counsel for the appellant, namely, the case of sribhagwan Singh and others ~.4pp Hants V/s. Rambasi Kuer and others-Respondents reported in AIR 1957 Patna 157, the cas? of Sukhan V/s. Krishnanand reported in 32 I. L. R. (Patna Series) 353 and the case of Mir Mohammad Siddique and another V/s. Keshwar Singh and others, reported in 46 I. L. R. (Patna Series) 1103 the case of Sribhagwan Singh and others V/s. Rambasi Kuer and others, (supra)was relied upon to show that this Court held that where a suit is based on title extended over more than twelve years, plea of adverse possession need not be specifically pleaded as it is included in the plea of title. The facts of this case are different from the facts of the instant case. In that case although the oral sale of defendant no.14 to the plaintiffs in 1927 was an invalid sale, it was referred to as explaining the nature and character of the possession of the plaintiffs. In the instant case the plaintiffs on their own showing admits the possession of Ramchhatri, the settle of 8 annas interest of the suit property till he was dead. This Ramchhatri had been found to be the son of Pratap and, according to the case of the defendants, he died in the year 1961. Then again, these observations in the said decision appear to be obiter dicta. In the case of sukhan V/s. Knshnanad (supra), it was held by a Division Bench of this Court that ordinarily, the principle no doubt holds good that adverse possession should be distinctly raised in the pleadings and should also form the subject-matter of an issue, but the plaintiff may be allowed to succeed on a title by adverse possession pleaded for the first time in the court of appeal when the fact is clear and unmistakable and the defendant is not taken by surprise. The facts of this case are different from the facts of the instant case. It was a case of abandonment of holding and subsequent settlement thereof. This story of abandonmant and subsequent settlement was disbelieved but the story of possession was found to be correct. Obviously this was not a case involving co-heirs or co-sharers. The facts of this case are different from the facts of the instant case. It was a case of abandonment of holding and subsequent settlement thereof. This story of abandonmant and subsequent settlement was disbelieved but the story of possession was found to be correct. Obviously this was not a case involving co-heirs or co-sharers. In the case of Mir Mohammad Siddique V/s. Keshwar Singh (supra), a Division Bench of this Court held that where the relevant facts for raising an issue of title by adverse possession were raised in the pleading by a party and all the facts were thoroughly dealt with by the trial court and the question of adverse possession was implicit in the case made out by them, a party can succeed on a title by adverse possession pleaded at the first appellate stage. It was further held in this case that adverse possession need not be shown to have been brought to the knowledge of the person affected by it and that what is required is that possession should be avert and without concealment. The facts of this case as well are different from the facts of the instant case and obviously it was not a case involving co-sharers as in the instant case. These three decisions can, therefore, be of no assistance to the plaintiff (appellant ). 12. On the other hand, learned counsel for the respondents relied upon the case of S. M. Karim, Appellant V/s. Mst. Bibi Sakina, Respondent reported in a. I. R.1964 Supreme Court 1254 where it was held that if the plaintiff puts forward any alternative claim, the claim must be clearly made and proved. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Their lordships further observed that a mere suggestion in the relief clause that there was a uninterrupted possession for "several, 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Lastly it was observed that long possession is not necesssarily adverse possession and the prayer clause is not a substitute for a plea. 13. Lastly it was observed that long possession is not necesssarily adverse possession and the prayer clause is not a substitute for a plea. 13. In the absence of any plea of adverse possession and ouster, no issue was framed in the instant case regarding acquisition of title by adverse possesssion. Naturally, therefore, the defendants were not expected to lead any evidence regarding any such issue. The procedure in allowing the parties to adduce evidence on points which arose on the evidence led by the parties but were not raised in the pleadings or issues as held in A. I. R.1942 Privy Council 64 (Lala hem Chand, Appellant V/s. Lala P. arey Lal and others Respondents) relied upon by the Learned counsel for the respondents has been held to be irregular. It has further been held that such evidence should not be allowed without amending the pleadings and raising the necessary issues. The learned counsel for the respondents also relied upon in this connection on the case of Kanda and others, Appellants V/s. Waghu Respondant reported in A.1. R.1950 Privy Council 68 wherein it was held that it was an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings of involved in or consistent with the case thereby made. In these circumstances, the contention of the learned counsel for the respondent that even if any evidence was adduced regarding acquisition of title by adverse possession without there being any pleading to that effect or any issue, the same should be legally ignored is not without force. 14. Coming to the merits of the evidence adduced, while the learned counsel for the appellant conceded that the lower appellate court has considered the oral evidence adduced by the parties on the point of possession, he raised a grievance regarding non-consideration of the documentary evidence adduced by the plaintiff, on going through the judgment of the lower appellate court it appears that the lower appellate court has duly considered all the documentary evidence adduced on behalf of the plaintiffs as also those of the defendants. As shown above in the plaint, the plaintiff did not dispute the possession of Ram-chhatri, the settlee of 8 annas interest till be was alive. This Ramchhatri, as found by the lower appellate court, was the son of Pratap, who died in the year 1961. As shown above in the plaint, the plaintiff did not dispute the possession of Ram-chhatri, the settlee of 8 annas interest till be was alive. This Ramchhatri, as found by the lower appellate court, was the son of Pratap, who died in the year 1961. Again, according to the allegation in the plaint, the plaintiff merely claimed to be in constructive possession of the house existing on the suit property through tenants and, on a consideration of the evidence, he found, in para 19 of his judgment, that the evidence of the witnesses for the plaintiffs on the point of tenancy also appeared to be unreliable. It appears that after recording these findings of fact the lower appellate court invoked the theory regarding possession of one co-sharer being the possession of all co-sharers merely by way of assumption assuming that the plaintiff had succeeded in proving his exclusive possession. This will be apparent from paragraph 28 of this judgment wherein he obsered as follows: "as I have already discussed above even if it is admitted for the sake of agrument that the plaintiff has been able to produce more papers in proof of their possession over the lands and house in question, simply on the ground of possession the plaintiff cannot seek declaration as prayed by him. Since the original settlement was also in favour of the defendants the plaintiff must show that the aforesaid title of the defendants has been extinguished but no such plea has been taken by the plaintiff in his plaint. Plaintiff has nowhere stated that by his continuous possession his title has become perfect or in other words he has not taken plea of adverse possession therefore that the possession of the plaintiff will also be taken as possession of the defendants even if it is admitted for the sake of argument that the defendants are not in actual physical possession. However, the defendants have also been able to produce certain papsrs in proof of, their possession. " it would thus appear that there is no merits in the second contention as well and there is thus no justification for the remand of the case. 15. The plaintiff instituted the instant suit merely for a declaration that the order of the Anchaladhikari mutating the name of the defendants over 8 annas inerest of the suit property is without jurisdiction. 15. The plaintiff instituted the instant suit merely for a declaration that the order of the Anchaladhikari mutating the name of the defendants over 8 annas inerest of the suit property is without jurisdiction. In view of the facts found by the lower appellate court, it cannot be said that the impugned order of the Anchaladhikari was without jurisdiction and as such the lower appellate court rightly set aside the judgment and decree of the trial court thereby dismissing the plaintiffs suit. There is, thus, no merit in this appeal which fails and is dismissed with costs. Appeal dismissed.