JUDGMENT (1.) THIS appeal is from the judgment and decree passed in appeal whereby an appeal from the decision of the learned Munsif in a suit for partition was allowed. (2.) STATED briefly the facts are as follows : The suit property which includes a tank measuring about 0.29 acre and a doba measuring about 0.11 acre originally belonged to one Kamdeb Patra who held the same as a tenant under an annual Jama of Rs. 24/ -. He died leaving four sons, namely, Anu, Bhanu, Sonu and Prankrishna. On Sonu dying unmarried his said 3 brothers got each 1/3rd share in the suit property. Thereafter Anu died leaving his son Krishnalal ; Bhanu died in or about 1950 leaving his widow Manjari, plaintiff No. 5 and 3 sons namely plaintiff No. 1 Dhananjoypur, plaintiff no. 3 Bonamali and plaintiff No. 4 Kucho and Prankrishna died in or about 1952 leaving his widow Memo and two sons, namely, plaintiff No. 2 Bishnupada and defendant No. 4 Keshab. On the aforesaid allegations the plaintiffs brought the present suit for partition on a declaration that the relevant entries in the revisional record-of-rights were erroneous, that they together with defendant No. 4 inherited 2/3rds share in the suit property and that the Roychowdhury who are defendants Nos. 1-3 acquired 1/3rd share only which they got by purchase from said Krishnalal, son of Anu. (3.) THE defence case inter alia was that the plaintiffs had no subsisting title, that Krishnalal was the sole and exclusive owner of the suit property, that the defendant's purchased from Krishnalal the 16 annas share in the suit property and not merely 1/3rd share as alleged by the plaintiffs, that the defendants since their purchase sometime in 1948 had been in continuous possession of the suit property openly and adversely to the plaintiffs and that accordingly the defendants acquired a good title by prescription. (4.) THE learned Munsif found that Krishnalal, the vendor of the contesting defendants, namely, defendants No s 1,-3 had merely an undivided 1 /3rd share in the suit property and the defendants accordingly did not acquire by purchase from him 16 annas share as claimed by them but they acquired only undivided 1 /3rd share which Krishnalal had in the suit property. The learned Munsif also found against the defendants so far as it concerned their case regarding alleged acquisition of 16 annas Shane in the suit property by adverse possession he also found that the relevant entries in the R. S. record-of rights were erroneous. The suit was accordingly decreed by the learned Munsif in a preliminary form by declaring that the plaintiffs together have 5/9th share, defendant No. 4 1/9th share and the contesting defendants, namely, defendants Nos. 1-3 1/3rd share. On appeal from the decision of the learned Munsif, the learned Additional District Judge allowed the appeal, set aside the judgment and decree passed by the learned Munsif and the result was that the suit stood dismissed on contest against the contesting defendants and without contest against the remaining defendant. (5.) MR. R. P. Bagchi, learned Advocate appearing for the appellants, contends that the court of appeal below approached the case from a wrong angle of vision and decided the appeal on an erroneous view of law. Admittedly the property originally belonged to Kamdeb and on his death his 4 sons named above succeeded him and on the death of one of those 4 sons, namely, Sonu, the remaining 3 sons got each 1 /3rd share in the suit property. It is further the admitted case that said Anu died leaving his only son Krishnalal and said Bhanu died leaving his widow plaintiff no. 5 Manjari and 3 sons, namely, plaintiff No. 1 Dhananjoypur, plaintiff No. 3 Bonamali and plaintiff No. 4 Kucho. Prankrishna, admittedly, died leaving his widow Nemo and two sons, namely, plaintiff no. 2 Bishnupada and defendant No. 4 Keshab Both the courts below concurrently found that at the date of the transfer of the suit property by said Krishnalal to defendants nos. 1 -3 said Krishnalal had only 1/3rd share in the suit property. That question also goes without challenge in this appeal. Accordingly this question that awaits determination in this appeal is whether after the purchase by the defendants nos. 1-3 they did acquire 18 annas share in the suit property by adverse possession. Admittedly at the date of their purchase they acquired only 1/3rd share which Krishnalal had in the suit property. That question also goes without challenge in this appeal. Accordingly this question that awaits determination in this appeal is whether after the purchase by the defendants nos. 1-3 they did acquire 18 annas share in the suit property by adverse possession. Admittedly at the date of their purchase they acquired only 1/3rd share which Krishnalal had in the suit property. The further admitted position is that at the time when the said transfer was made by Krishnalal he was a co-sharer in respect of the property of which the other co-sharers were the plaintiffs and the defendant no. 4. By the said purchased the contesting defendants, namely, defendants nos. 1 -3 became', co-sharers of the plaintiffs and defendant no. 4. It is significant to note here that even though the contesting defendants; claimed to have acquired title to the whole of the suit property by virtue of adverse possession there was no case made out in the written statement filed on their behalf that there was so far as the other co-sharers were concerned an ouster. At the outset it would be proper to state the law on the question involved. Mr. Bagchi relied on the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 S.C.R. 195= A. I. R. 1957 S. C. 314. There in that case the law on the matter, in issue now before us has been clearly stated. Ordinarily in a case where acquisition of title by adverse possession is claimed the claimant is to prove possession adequate in continuity, publicity and in extent to show that it is possession adverse to the competition. But in the case of co-tenants or co-heirs or co-sharers as the case may be it is not enough for the claimant to prove that he was in continuous possession of the property in question for a period exceeding 12 years. In the case of persons who are co-sharers if one of them claims to have acquired title by adverse possession something more is required to be proved than what a stranger claiming adverse possession is to prove. The reason why something more is required to be proved is quite obvious. Ordinarily the possession of one co-sharer is the possession of all the co-sharers. When one co-sharer performs acts of possession they are, without any proof to the contrary, to be regarded as acts done on behalf of all the co-sharers. The reason why something more is required to be proved is quite obvious. Ordinarily the possession of one co-sharer is the possession of all the co-sharers. When one co-sharer performs acts of possession they are, without any proof to the contrary, to be regarded as acts done on behalf of all the co-sharers. Possession may be either lawful or unlawful. In the case of co-sharers when one co-sharer is in possession of the property in question his possession should ordinarily be regarded as lawful and he should ordinarily be regarded as having duly performed his duties as a co-sharer; or in other words he should be deemed to have exercised acts of possession on behalf of himself and other co-sharers. In such cases as those if any co-sharer who happens to be alone in possession of the joint property claims to have acquired exclusive title to the exclusion of his other co-sharers he has to prove clear exclusion or ouster of those other co-sharers. The co sharer claiming to have acquired title to the exclusion of other co-sharers cannot do so on the basis of any secret hostile animus in derogation of the other co-sharers title. To render his possession adverse against other co-sharers he has to prove through cogent evidence that there was an assertion of hostile title, coupled with exclusive possession and enjoyment by him to the knowledge of his co-sharers. By proving all these one co-sharer may be said to have established a clear case of exclusion or ouster of the other co-sharers and it is then and then alone that he may assert his exclusive title. This is the test laid down in P. Lakshmi Reddy's case (supra). This statement of the law on the subject as found in P. Lakshman Reddy's case (supra) was approved by the Supreme Court in another case, namely, Shambhu Prasad Singh v. Phool Kumari, A.I.R. 1971 S.C. 1337. This is also the law laid down in Jagannath Marwari v. Chandni Bibi 26 C.W.N. 65 It was further held in this case that mere non-participation in the Profits arising out of the properties in question by other co-sharers and mere exclusive occupation by the co-sharer claiming acquisition of hostile title would not be conclusive on the question whether the co-sharer claiming acquisition of title by adverse possession succeeded in proving his case of such acquisition of title. Exercise of violence or expulsion through intimidation or any sort of overt retaliation is not of course necessary for proving ouster by one of the co-sharers. But the co-sharer claiming to be in exclusive possession for more than 12 years and asserting on the basis thereof that he acquired title by adverse possession must make his possession so visibly hostile and notorious and so apparently exclusive and adverse as to justify the inference of knowledge on the part of his co-owner or co-sharer sought to be ousted, it has been further held in the case of Jagannath Marwari (supra) that even the construction of a substantial building in a part of the disputed land would not be conclusive proof of ouster. Further if any improvements be effected the co-sharer effecting improvement can claim equity in this regard but the fact that improvement had been effected by him would be no proof of ouster of his co-sharer. 9. The question which is involved in this appeal is a mixed question of law and fact. That was also the view taken in a number of cases including Balaram Guria v. Shyama Charan Mondal, 24 C. W. N. 1057. It is significant to note that in Balaram Guria's case the court went to the length of holding that even a sale in assertion of exclusive right cannot amount to ouster of co-sharers, or In other words assertion of hostile title against co-sharers. 10. Though, as already stated, mere non-participation in the profits or mere want of possession on the part of, some of the co sharers would not amount to exclusion or ouster, it was held, in Ayenenussa Bibi v. Sheikh Isuf 16 C. W. N. 844, that such non-participation or want of possession may however, in certain circumstances amount to adverse possession. The circumstances in which non-participation or want of possession would amount to ouster or exclusion do, not admit of general enurheration. That is a question of fact and such question has to be determined on the facts and circumstances of each particular case. 11. Regard being had to the law on the question involved let us examine the circumstances which according to the defendants respondents would prove ouster or exclusion of their co-sharers. Mr. That is a question of fact and such question has to be determined on the facts and circumstances of each particular case. 11. Regard being had to the law on the question involved let us examine the circumstances which according to the defendants respondents would prove ouster or exclusion of their co-sharers. Mr. R. N. Mitra, learned Advocate appearing for the contesting respondents, refers me to the (circumstances appearing in evidence in this case on the basis whereof he contends that the court of appeal below rightly held that the defendants succeeded in proving their case of ouster. The circumstances referred to by Mr. Mitra are the following : The defendants claimed to have purchased the suit property as far back as 1948. The defendants spent money over the excavation of the tank in question. They bought spawns and released them in the tank. They sold fishes which were reared by them in the suit tank. They paid entire rent. In 1950 when a theft of fish was committed by one Gobardhan Sarkar and 3 others there was criminal case instituted by the contesting defendants and the accused persons were convicted therein. These are all circumstances which, even if satisfactorily proved would go to establish the possession by the contesting defendants of the suit property. They in no way prove ouster. But possession for any length of time would not by itself amount to exclusion or ouster 6f the co-sharers, however, long such, possession may be. Mention in this regard may be made of the fact that in the case of Balaram Guria (supra) possession for more than 50 years why proved but the court in that case was not prepared to hold that such long possession by one of the co-sharers would amount to exclusion or ouster of the other co-sharers. 12. Mr. R. N. Mitra referred me to another important fact namely that sometime in 1964 a few days before, the institution of the present suit by the plaintiffs appellants, there was a theft of fish committed by the plaintiff No. 1 and others and on a criminal case being filed by the contesting defendants there was conviction of the accused persons in that case. This act on the part of the contesting defendants would of necessity regarded as an act done in dear assertion of title hostile to that of the plaintiffs, or at least plaintiff No. 1. But as the suit was filed within a few days after the said criminal case against the plaintiff No. 1 and others, that clear act of assertion of hostile title would be of no avail to the contesting defendants. If no suit were brought by the plaintiffs asserting their title to the suit properly within 12 years from the date of such an act, the contesting defendants could have successfully resisted the plaintiffs' claim for partition of the suit property 13. There was another circumstance to which both Mr. Bagchi and Mr. Mitra drew my attention and each in support of his own case. The attestation during the preparation of the revisional record-of-rights was made on December 1, 1957. Even according to the concurrent findings of both the courts below, as already pointed out, said Krishnalal continued to be a co-sharer along with the plaintiffs and defendant No. 4 and he had only 1 /3rd share in the property. The said sale by Krishnalal in favour of the contesting defendants took place on December 14, 1948. Even if there had been assertion of adverse title since the date of purchase, on December 1, 1957, the contesting defendants could not have acquired title as the period from the date of their purchase fell far short of 12 years. Accordingly the learned Munsif was justified in holding that the relevant entry in the record-of-rights was erroneous. It may very well be said in this connection that those entries did have no basis whatsoever. Accordingly the fact that attestation was effected on December 1, 1957 does in no way help the contesting defendants. 14. What in the circumstances aforesaid would be the starting point of alleged assertion of hostile title against the plaintiffs ? if the said date of attestation, namely, December 1, 1957 be the starting point, then the suit which was brought in 1964 was well within time and not beyond the period of 12 years from that date. Further, if such starting point is to commence from the date of the criminal case against, the plaintiff No. 1 and others, the suit was then also within time. Further, if such starting point is to commence from the date of the criminal case against, the plaintiff No. 1 and others, the suit was then also within time. The institution of a criminal case against said gobardhan and others can in no way be regarded as an assertion of title as against the plaintiffs. Gobardhan and other accused persons in that criminal case had nothing to do with the plaintiffs or the suit property. Further, as already pointed out, the date of sale by Krishnalal in favour of the contesting defendants which took place on December 14, 1948, cannot be the starting point of assertion of hostile title, for, I have already indicated that there are decisions of this court wherein it was held that mere execution of a sale deed by one of the co-sharers could not be regarded as assertion of title so far as other co-sharers are concerned. 15. On the basis of the following comment appearing at P. 202 of the Supreme Court Report repeating the case of P. Lakshmi Reddy (supra), Mr. Mitra argues that for establishing ouster it is not necessary that there should be an express demand or an express denial made : "this does not necessarily mean that there must be an express demand by one and denial by the other". In the sentence just proceeding this comment it is stated that 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 by one of them to the knowledge of the other so as to constitute ouster. Granting that for purposes of making out a case of ouster it is not necessary that there should be an express demand or denial of court but be held that there must of necessity be some such materials appearing in evidence wherefrom a legitimate inference may be drawn that there was on, the part of the co-sharer claiming adverse" possession an open assertion of hostile title against his co-sharers. The materials appearing from the evidence on record which have at greater length been discussed by me in the foregoing paragraphs do not furnish us with any clear and open assertion of hostile title by the contesting defendants against the plaintiffs. The materials appearing from the evidence on record which have at greater length been discussed by me in the foregoing paragraphs do not furnish us with any clear and open assertion of hostile title by the contesting defendants against the plaintiffs. The only act regarding which evidence has been adduced and from which an inference may be made regarding such hostile assertion is the institution against the plaintiff no. 1 an others of a criminal case on the allegation that they committed theft of fish from the tank in question. I have already made my comment regarding that and I need not dilate on that. I may only say that within a few days of that hostile assertion the plaintiffs brought the present suit. So there arises no question of acquision of title by adverse possession against the plaintiffs by reason of the lapse of 12 years from the date of assertion of hostile title. 16. Mr. Mitra refers me to Padmini Bai v. Tangayya AIR 1979 SC 1143. That was a case where no question of any claim of adverse possession against a co-sharer arose. Accordingly that case has no manner of application to the facts of the present case. 17. Further in the present case I have already pointed out that though in the written statement (paragraphs 11 and 12) the contesting defendants presented a case of acquisition of title by adverse possession, no specific case of ouster was there it may be mentioned in this connection than in the trial court there was no issue framed regarding the alleged acquision of title by adverse possession on the basis of ouster. Such an issue was however framed in the court of appeal below; in this regard it is settled law that where a claim has never been made in the defence, no amount of evidence can be looked into upon a plea which was never put forward. Such an issue as that is, as already pointed out, a mixed question of law and fact and such a question ought to be raised at the trial stage. In the circumstances the trial court would be entirely wrong if it permitted evidence for the purpose of establishing ouster. Such an issue as that is, as already pointed out, a mixed question of law and fact and such a question ought to be raised at the trial stage. In the circumstances the trial court would be entirely wrong if it permitted evidence for the purpose of establishing ouster. Even if it be conceded, though II find it difficult to so concede, that such evidence when permitted to be adduced ought to be taken into consideration, the materials on record already discussed by me would show that the contesting defendants lamentably failed to prove a case of ouster. 18. No other question was raised before me. In the circumstances aforesaid, the finding of the court of appeal below that the suit was barred by limitation ought to be set aside and is set aside. The appeal ought to be allowed and the decision of the learned Munsif ought to be restored. The appeal is accordingly allowed, the judgment and decree of the court of appeal below are set aside and those passed by the learned Munsif are affirmed. There will, however, be no order as to costs. Appeal allowed. No costs.