JUDGMENT : N.K. Das, J. - Plaintiff is the Appellant. The appeal arises out at a suit for partition and recovery of damages. The admitted genealogy is given hereunder. Jagu Das Madhu Karuni Gouri Balakrushna Nila Srihari Punananda Narahari Balaram Srihari Ananta (D. 14) Kausalya Sushila (died (D.9 =Wife (issueless) Sashi (D.1) Nityananda Shankar Chakradhar Ankura (D.5) (D.6) (D.7) (D.8) It may be noted here that the contention of the contesting Defendants is that Narahari had a daughter who is Sukuti, Defendant No. 15, and Defendant No. 10 is the husband of Defendant No. 15. 2. Plaintiff's case is that Srihari, Punananda and Narhari were three brothers. Narahari died about fifteen years back leaving no issue. Srihari died leaving Ananta (Defendant No. 14) the son and widow of Ananta, Defendant No. 1. Punananda also died leaving Kausalya his widow. As Narahari died issueless in a state of jointness long back, Srihari and Punananda each was entitled to half share in the family properties. After death of Punananda, his widow Kausalya transferred her half share as per schedule 'Ka' of the plaint in the year 1944 in favour of Defendant No. 10, husband of Defendant No. 15 Sukuti. Defendants No. 10 transferred the said property in the year 1962 in favour of the Plaintiff who is a stranger. Plaintiff by virtue of the sale deed came to possess the said property and enjoyed the same peacefully till 1965, when Defendant No. 1 forcibly cut and removed crop therefrom, for which damage is claimed as per schedule 'Gha' of the plaint. Defendant No. 1 in her written statement contends that- Narahari did not die issueless, but he left behind his daughter Sukuti who is entitled to 1/3rd share. As such, even if for the sake of argument, it is found that Plaintiff is entitled to any share, he is not entitled to half share. The sale deed executed in favour of Defendant No. 10 is not genuine and is a Benami document which was never intended to be acted upon, nor possession was delivered. Plaintiff also did not come into possession of the property in pursuance of the sale deed of the year 1962, As Plaintiff and his vendor were never in possession, the suit is barred by limitation. 3. Plaintiff also did not come into possession of the property in pursuance of the sale deed of the year 1962, As Plaintiff and his vendor were never in possession, the suit is barred by limitation. 3. The trial Court has held that Plaintiff and his predecessors were not in possession of the suit properties within the statutory period and, as such, the suit is not maintainable. He has further held that as Sukuti is the daughter of Narahari, she has interest in the properties and Plaintiff is not entitled to the share as claimed by him. 4. Admittedly, Narahari died prior to the C.S. operations. This fact is also admitted by Defendant No. 1 in paragraph 10 of her written statement. It is contended therein that Narahari died leaving his widow and a daughter in a state of separation. But no evidence about separation has been adduced in this case. As Narahari died prior to the C.S. operation, long prior to the Hindu Women's Right to Property Act came into force, his widow is not entitled to any share in the properties. There is no evidence on record to support the contention that Narahari died in a state of separation. On the other hand, under Ext. 3, a sale deed dated 15-8-1929, Narahari and his two other brothers sold jointly some properties to Defendant No. 3. It appears from the documents available on record that half interest was sold under Ext. 3 and the balance half was sold by Kausalya and Ananta to Defendant No. 10. The position, therefore, is that after death of Narahari, his interest devolved on Srihari and Punananda. Kausalya is the widow of Punananda. From the evidence of D.W. 4 in paragraph-9 and D.W. 5 in paragraph-5, it appears that Punananda died sometime in the year 1942-43, So, the interest of Punananda devolves on Kausalya. Kausalya and Ananta sold half interest to Defendant No. 10 by different sale deeds in the year 1944. Out of the properties purchased by Defendant No. 10, the latter has sold the properties covered under Ext. 1 in 1962 to the Plaintiff. In paragraph-10 of the written statement of Defendant No. 15 it is contended that the sale deed by Kausalya was really in favour of Defendant No. 15, but it was executed in the name of Defendant No. 10. 1 in 1962 to the Plaintiff. In paragraph-10 of the written statement of Defendant No. 15 it is contended that the sale deed by Kausalya was really in favour of Defendant No. 15, but it was executed in the name of Defendant No. 10. Defendant No. 15 Sukuti has stated that she never purchased any land from Kausalya, nor instructed her lawyer that she purchased any land from Kausalya. This would show that the sale deed in favour of Defendant No. 10 is genuine. Ananta, husband of Defendant No. 1, has sold his share to Defendant No. 10. Ananta does not contest. His wife Defendant No. 1 filed written statement, but she did not come to dock to substantiate her contention. P.W. 1 that Plaintiff has stated that Kausalya executed a sale deed in favour of Defendant No. 10 and the sale deed is with Defendant no 10. The lands he purchased from Krushna Das, Defendant No. 10 were purchased by Krushna Das from Kausalya. He asserts that he was in possession of the lands. P.W. 2 has lands close to the disputed lands' purchased by the Plaintiff. He has stated that Defendant No. 10 and then the Plaintiff are in possession of the same. The evidence of Defendants 3 and 4 is also to the same effect. D.W. 1 says that he has no idea about the lands at Alipur and as regards lands at Fulapur, Ananta was in possession of a portion. D.W. 2 has also spoken about possession of portions of the lands at different places, D.W. 3 is Defendant No. 15 and D.W. 4 is Ananta, husband of Defendant No. 1. Excepting the bare statement of Ananta, there is no evidence about the Benami transaction, as alleged Even Defendant No. 15 has dearly stated that the document in favour of Defendant No. 10 is genuine. Onus lies on the party who alleges a document as Benami and he has to establish the motive for such document, absences of consideration custody of the document and possession of the property. There is absolutely no evidence on these points from the side of the contesting Defendant. Therefore, the plea of Benami fails and the admission of Defendant No. 15 dearly supports the case of the Plaintiff. Therefore, we hold that the document in favour of Defendant No. 10 was genuine. 5. There is absolutely no evidence on these points from the side of the contesting Defendant. Therefore, the plea of Benami fails and the admission of Defendant No. 15 dearly supports the case of the Plaintiff. Therefore, we hold that the document in favour of Defendant No. 10 was genuine. 5. The trial Court has held that Defendant No. 10 and the Plaintiff were never in possession and, as such, the suit is not maintainable. From the discussions made above it is clear that after death of Narahari the properties belonged to Srihari and Punananda. After death of Punananda his widow Kausalya got the interest of Punananda. Similarly. Kausalya sold her interest to Defendant No. 10 and Ananta sold his interest to Defendant No. 10. Therefore, Defendant No. 10 was a co-sharer by virtue of his purchase from Kausalya and Ananta. Plaintiff is admittedly the purchaser from Defendant No. 10. So, Plaintiff steps into the shoes of Defendant No. 10 and becomes a co-sharer along with Ananta, Kausalya anthers co-shares. P.W. 1 the Plaintiff has stated that he 'possessed the lands for four years and a criminal case was filed by Defendant No. 15 against him for destroying the seedlings and he was acquitted. He also states to have raised paddy crop in the year 1965 and ultimately he has denied that Defendant No. 1, Kausalya or Defendant No. 15 ever possessed the suit lands. P.W. 2 also states about the possession of Defendant No. 10 and possession of the Plaintiff thereafter. Defendant No. 3 has also spoken about the separate possession by the Plaintiff and Defendant No. 1 and he has stated that Defendant No. 16 never possessed. P.W. 4 states to be a Bhag tenant under the Plaintiff and be was made an accused along with the Plaintiff in the criminal case filed by Defendant No. 15. In paragraph 3 of his deposition he has stated in cross-examination the details of the lands possessed by the Plaintiff, which were cultivated by him as Bhag tenant. D.W. 1 speaks about possession by Defendant No. 15, but Defendant No. 15 has clearly stated that she has not purchased any property nor she is in possession of any portion of the disputed properties. On the other hand, from his evidence it appears that Kausalya and Ananta were possessing different portions. D.W. 1 speaks about possession by Defendant No. 15, but Defendant No. 15 has clearly stated that she has not purchased any property nor she is in possession of any portion of the disputed properties. On the other hand, from his evidence it appears that Kausalya and Ananta were possessing different portions. He does not speak anywhere that Defendant No. 10 never possessed these properties purchased by him. D.W. 2 has spoken about construction of separate houses by Defendant No. 10, Kausalya and Ananta. D.W. 4 is Ananta, husband of Defendant No. 1 and he states that he cannot say who is possessing 15 decimals of land out of schedule 'Ka' and he is also unable to say if Defendant No. 3 is in possession of any land appertaining to schedule 'Ka'. From his evidence it appears that Defendant No. 1 possesses 1/3rd of the properties covered under the suit and those lands are continuous to the lands of Defendant no 10. On the other hand the definite evidence on behalf of the Defendant is that Defendant No. 15 is in possession of the properties. We have held that the plea of Benami transaction as set up by Defendant No. 15 fails and she says that she has not purchased any land. So even if Defendant No. 15 was in possession it would amount to possession on behalf of Defendant No. 10. Defendant No. 5 does not speak anything about possession. After scrutinising the evidence of the witnesses examined by both parties, it transpires that Kausalya was in separate possession of certain portions and Defendant No. 10 after his purchase possessed the lands and Plaintiff was also in possession of the suit lands. 6. The question whether a stranger purchaser of a share in the joint family property is or is not in possession, is not material for filing a suit for partition by such co-sharer. This Court in Parbati Dei v. Markanda Behera and Ors. 1970 (1) C.W.R. 114, has held that as regards co-owners the law is that there can be no adverse possession by one co-owner unless there has been denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of transferee from a co-owner who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of a transfer. This Court for the above finding has relied on Bhimayya v. Kundana Bibi 1958 (22) C.L.T. 51 and Dipnarain Rai and Others Vs. Pundeo Rai and Others. In view of the decision of this Court as stated above, the question whether Defendant No. 10 or the Plaintiff was not in possession of the properties is of no importance and even if they are not in possession of the properties that will not disentitle the Plaintiff to sue for partition. In the aforesaid decision it has been clearly held in paragraph-8 that the Plaintiff as co-owner is entitled to exercise his right on the date of the suit and a suit for partition at his instance is sustainable. Therefore, the suit for partition by the Plaintiff under the circumstances is maintainable and the findings of the trial Court in this respect are wrong. 7. Sukuti, Defendant No. 15, has admitted that she has not purchased any property from Kausalya. As Narahari died prior to the settlement operations, Sukuti Defendant No. 15 has no interest in the properties and she cannot have any claim as a co-sharer or co-owner. She has not taken any plea of ouster. As she is not a co-sharer, she also cannot take such a plea. On the aforesaid analysis, we bold that Plaintiff has acquired title by virtue of Ext. 1, the sale deed in his favour by Defendant No. 10 and he is entitled to sue for partition in order to carve out his share. 8. It is contended by the counsel for Defendant No. 15 that the sale in the year 1944 in favour of Defendant No. 10 by Kausalya is not for legal necessity. It is well settled that a third person cannot challenge any transaction on legal necessity unless he or she has interest in the property. We have already held that Defendant No. 15 has no interest in the properties. She has taken a stand of Benami transaction in the name of her husband. We have already held that it was not a Benami transaction. Accordingly, the contention of the learned Counsel for Defendant No. 15 is not tenable. 9. The next question is what is the share of the Plaintiff in the disputed properties. She has taken a stand of Benami transaction in the name of her husband. We have already held that it was not a Benami transaction. Accordingly, the contention of the learned Counsel for Defendant No. 15 is not tenable. 9. The next question is what is the share of the Plaintiff in the disputed properties. The disputed properties consist of three schedules, namely, 'Ka', 'Kha' and 'Ga'. Schedule 'Ka' consists of two plots - 848 and 703. In schedule 'Ka' property, Kausalya had 8 ann as share and the balance 8 annas belonged to Ananta, original Respondent No. 14. The Plaintiff-Appellant has purchased 28 decimals out of the total 56 decimals of plot No. 848 and Respondent No. 1 is entitled to the' balance 28 decimals. So also in plot No. 703 Plaintiff has purchased half of the total lands. Therefore, in schedule 'Ka' property, Plaintiff has got 8 annas share. In schedule 'Kha' property Defendant No. 3 is entitled to 16 decimals in plot No. 345 having total area of 41 decimals by purchase from Srihari and Punananda under Ext. 3. Out of the balance 25 decimals Defendant No. 4 is entitled to 12.05 decimals as purchaser from husband of Defendant No. 1 and Defendant No. 10 is entitled to 1295 decimals by virtue of his purchase from Kausalya under Ext. A. In plot Nos. 16 and 23 having a total area of 80 decimals Defendants 5 to 9 are entitled to 40 decimals which is their half share and Srihari and Punananda are entitled to the balance 40 decimals. Out of this, Defendant No. 10 is entitled to 10 decimals, Defendant No. 1 is entailed to 8 decimals Defendant No. 11 is entitled to 12 decimals and Plaintiff is entitled to 10 decimals. Defendant No. 10 has purchased 40 decimals from Kaushlya and Ananta under two sale deeds in 1944. Defendant No. 10 has sold 20 decimals to Defendant No. 1 and 10 decimals to the Plaintiff and has retained 10 decimals with himself. Therefore, Plaintiff is entitled to 4 annas share in schedule 'Kha' property. In schedule 'Ga' property, Plaintiff is entitled to 4 annas share which is 32 decimals and Defendants 10 and 1 together are entitled to 4 annas share which is 33 decimals. Defendants 12 and 13 are entitled to 8 annas share which is 66 decimals. 10. Therefore, Plaintiff is entitled to 4 annas share in schedule 'Kha' property. In schedule 'Ga' property, Plaintiff is entitled to 4 annas share which is 32 decimals and Defendants 10 and 1 together are entitled to 4 annas share which is 33 decimals. Defendants 12 and 13 are entitled to 8 annas share which is 66 decimals. 10. In the result, the appeal is allowed. The judgment and decree of the trial Court are set aside. Plaintiff's suit is decreed and he is entitled to partition of his 8 annas share in schedule schedules 'Ka' 4 annas share in 'Kha' and 'Ga' each. Plaintiff is entitled to get his shares carved out through a survey knowing commissioner after applying to the trial Court and depositing costs therefor within a date to be fixed by the trial Court. In the circumstances of the case, we make no order as to costs of this Court. P.K. Mohanti, J. 11. I agree. Final Result : Allowed