M. K. SHAH, J. ( 1 ) THIS appeal filed by original defendant No. 1 who died during the pendency of the suit and whose heirs viz. defendants Nos. 1 (1) to 1 (4) were brought on record is directed against an order passed by the lower appellate court in regular civil appeal No. 121 of 1976 of the court of the learned District Judge Bulsar at Navsari dismissing the appellants appeal and confirming the decree of the trial court in respondent No. 1s suit being regular civil suit No. 6 of 1972 which was decreed by the learned Civil Judge (Junior Division at Gandevi by his judgment and order dated 25th September 1976 declaring that the plaintiff and deceased defendant No. 1 each had one half share in the suit houses and appointing a Commissioner for making partition and ordering the drawing of a preliminary decree accordingly. . . . . . . . . . . . . . . . . . . ( 2 ) MR. D. D. Vyas the learned Advocate appearing for the appellants was not in a position to substantiate the case of the defendants with regard to ownership of the suit properties by virtue of the alleged oral gift by deceased Chhiba in favour of defendant No. 1. As rightly held by the courts below no such immovable property of the value of Rs. 100. 00 and upwards can be transferred by an oral gift. Both the courts have also on evidence given a concurrent finding that there was no material on record to justify a conclusion that any such oral gift was made by Chhiba in favour of deceased Bai Kunver and in a second appeal therefore this court would be most reluctant to disturb that finding. ( 3 ) BUT Mr. Vyas contends that in view of the fact that admittedly from prior to the death of the deceased defendant No. 1 was in possession of the suit properties to the exclusion of the plaintiff the defendants acquired an interest in the properties by adverse possession. Now in order to succeed on a plea of adverse possession the defendants have to establish that she (defendant No. 1) claimed a title hostile to the real owner and in case of coowners ouster will have to be proved. Now in order to succeed on a plea of adverse possession the defendants have to establish that she (defendant No. 1) claimed a title hostile to the real owner and in case of coowners ouster will have to be proved. After the death of the deceased the property according to Hindu law of succes sion would devolve on the plaintiff and defendant No. 1 as the heirs of the deceased as the third daughter of the deceased viz. Bai Somi bad predeceased Chhiba and therefore the heirs who survived deceased Chbiba in the year 1943 when he died were the plaintiff and defendant No. 1. Defendant No. 1 was staying at that time with the deceased and her continuance in possession therefore unless there is some overtract constituting open ouster of the other coowner would not ripen into any title on her by way of adverse possession. ( 4 ) MR. Vyas then pointed out that by an application dated 10th April 1953 Ex. 59 the first defendant applied to the city survey officer to have the properties mutated in her name and that thereafter as Ex. 60 shows the properties were shown in the name of defendant No. 1 in place of deceased Chhiba. But if one looks at Ex. 59 what is stated therein is that her father in whose name the properties were standing at that time had died about 13 years before she made that application and that there was no other heir except the applicant that is deceased defendant No. 1 to her father Chhiba and that the properties were in her possession under a right of heirship and in that property except the applicant nobody else had any right title or interest and that the property therefore should be mutated in her name by virtue of the right of inheritence. This in no case in my opinion would amount to an ouster. This amounts to a misrepresentation to the knowledge of the first defendant to the effect that she was the only heir and legal representative of her deceased father who had died 13 years ago and that therefore by virtue of the fact that she was the only heir and legal representative surviving the deceased she was entitled to get the properties mutated in her name. Now this was absolutely a false statement in view of the admitted position that at that time she was not the only heir but another heir viz. the plaintiff was also surviving the deceased and the property had therefore devolved by succession to both of them. Again no notice is shown to have been served on the plaintiff before mutating the property to the name of defendant No. 1. It would also be evident on perusal of Ex. 60 that the property was mutated in the name of deceased defendant No. 1 from the name of deceased Chhiba who was in occupation thereof by virtue of being the owner of the property as defendant No. 1 was the daughter of the deceased and she was entitled to the suit properties as an heir of the deceased. ( 5 ) THIS act on the part of defendant No. 1 by no stretch of imagination can be construed as ouster because a coowner pleading ouster must establish that the denial of the other coowners right in the property was sufficiently notorious and she continued to enjoy the property in repudiation of the right of the other coowner with her knowledge for the statutory period under Art. 65 of the Limitation Act 36 of 1963 and the burden of proving that the title which had devolved on the plaintiff jointly with defendant No. 1 on death of their father deceased Chhiba has been lost by the plaintiff by adverse possession of the defendant is not discharged by the said defendants. ( 6 ) REALISING this position Mr. Vyas ultimately submitted that in any event as provided in sec. 43 of the Mullas Principles of Hindu Law 19 Edition at page 113 as between married daughters the ihheritence goes first to the unmarried daughters; then to daughters who are married and unprovided for that is indigent and lastly to daughters who are married and are enriched that is possessed of means. ( 7 ) IN the first instance this is an entirely new can which is being canvassed on behalf of the first defendant in this second appeal. ( 7 ) IN the first instance this is an entirely new can which is being canvassed on behalf of the first defendant in this second appeal. No such plea was taken in the written statement to the suit no issue was raised no evidence was led keeping in mind the said issue nor was any such point taken in the memorandum of appeal before the lower appellate court nor argued before the lower appellate court nor do I find any such point taken in the memorandum of appeal in this court; and it is for the first time at the argument stage of this second appeal that Mr. Vyas wants to raise this point. I cannot permit him to raise the same. The decision on this point will depend on the question as to whether one of the daughters viz. defendant No. 1 at the time of the death of deceased Chhiba was indigent and unprovided for while the other daughter that is the plaintiff was enriched and was possessed of means. As there was no pleading to this effect nor was any issue raised the parties were not expected to lead evidence keeping this controversy in mind and focussing their attention on a case that defendant No. 1 would be entitled to inherit the estate of her deceased father to the exclusion of the plaintiff on the ground that defendant No. 1 at the time of the death of the deceased was indigent and unprovided for while the plaintiff was enriched and possessed of means. Such a case has to be first pleaded by defendant No. 1 and if resisted by the plaintiff then proved by the said defendant. Such a case for the first time cannot be permitted to be canvassed on behalf of the first defendant at the argument stage in a second appeal because it is bound to cause prejudice to the plaintiff who is taken unaware all of a sudden and it would thus result in failure of justice. ( 8 ) BUT even on merits on going through the relevant part of the evidence through which I have been taken by Mr. Vyas I do not find any material on record to justify such a conclusion though as earlier stated in view of the fact that such a cause was neither pleaded nor proved such a contention cannot be permitted. Vyas I do not find any material on record to justify such a conclusion though as earlier stated in view of the fact that such a cause was neither pleaded nor proved such a contention cannot be permitted. The evidence which is brought on record to which my attention has been drawn was not specifically brought on record on an issue raised on this question. The parties attention was not focussed on this question because there was no case no pleading and no issue. Therefore any stray statement extracted from the plaintiff here or there purporting to support the defendants case in this behalf cannot help. The statements on which Mr. Vyas relied by way of admissions of the plaintiff appear in paras 4 and 7 of the plaintiffs deposition (depositions of the witnesses examined on behalf of the defendants are absolutely silent in this respect ). The statement pointed out from para 4 in cross examination of the plaintiff is to the effect that the husband of defendant No. 1 was doing service at Poona and therefore defendant No. 1 was staying with the father of the plaintiff. I fail to spell out any material from this to the effect that defendant No. 1 was indigent and unprovided for and the plaintiff was enriched and possessed of means. The second group of statements pointed out from para 7 are to the effect that the plaintiff admitted in her deposition that the deceased defendant was staying with her father for a period of 20 or 25 years and that the husband of deceased defendant No. 1 was staying in the suit premises as Ghar Jamai. Now here also it has to be borne in mind that as earlier stated the said defendants husband was doing service at Poona and therefore his staying in the house of the deceased cannot lead to an inference that he was not earning anything and therefore. he was staying there. So even on merits there is nothing to lean on for the defendants from the so called admissions extracted from the plaintiff in her cross examination. Appeal dismissed. .