JUDGMENT G.C. Bharuka, J. This appeal is directed against the judgment and decree dated 3.1.1975 passed by the learned Subordinate Judge, Biharsharif, in T.S. No. 242 of 1970. Defendants no. 20 to 22 are the appellants. 2. The suit was filed by late Bibi Fatima as the sole plaintiff for partition in respect of the lands appertaining to Khata no. 441 (Part) and 442, Touzi No. 11017 situated at village Kumssuri, fully described in Schedule I of the plaint. Since during the pendency of the suit, Bibi Fatima died her son Md. Quamrul Hoda and daughter Bibi Jaina were substituted as plaintiffs. During the pendency of the present appeal, Bibi Jaina, who was issueless also died leaving behind her brother Md. Quamrul Hoda, who is already on the record. 3. The plaintiff has based his claim on the basis that the suit properties are ancestral in nature in which the share of the original plaintiff, Bibi Fatima, is 1 and 14 dams. But the Defendants-appellants have disputed this basis fact pertaining to the character of the properties. 4. To properly appreciate the contentions of the parties it is better to produce the genealogical table of the family as set out in the plaint : 5. From the above genealogical table, it is not in dispute that Abdul Ghani was the common ancestor, who had died leaving behind him his wife, Bibi Sakshan and his two sons. Abdul Barkat and Abul Hasan. Both the sons died during the life time of their mother. Bibi Bakshan. Abul Barkat left behind him his widow Zubaidan and two daughters Bibi Saira and Bibi Hazra, Abul Hasan died leaving behind him his widow Bibi Taiban, three sons and three daughters. The three sons are Nurul Haque, Hafizul Haque and Basiruddin. The three daughters are Fatima (original plaintiff), Anisa and Khadaija. 6. It is the common case of the parties that two brothers Abul Barkat and Abul Hasan had equal share in the suit properties and that the share of Abul Barkat devolved on his two daughters, Saira and Hazra. The dispute in the suit is in respect of the share of the second brother, Abul Hasan. According to the plaintiff his share was inherited by his heirs according to Mohammedan law of inheritance whereas according to the contesting defendants. Md. The dispute in the suit is in respect of the share of the second brother, Abul Hasan. According to the plaintiff his share was inherited by his heirs according to Mohammedan law of inheritance whereas according to the contesting defendants. Md. Basiruddin one of the sons of the deceased Abul Hasan had acquired the said share in its entirety pursuant to a Hiba made in his favour by his late father. The aforesaid dispute has arisen because Basiruddin had sold 2.66½ acres of land out of the suit properties claiming to be his partitioned properties to one Md. Khalil alias Kalimuddin by registered Sale deed (Ext. 'D') dated 17-2-1943. The defendants 20 to 22 are the purchasers from Khalil with respect to an area of 1.47 acres and 0.53 acres through Sale deed (Exts. D/1) and (D/2) both dated 13-5-1953. It is obvious that if the contentions of the plaintiffs are accepted then they have share in the suit properties including those held by the contesting defendants. But if the case made out by the defendants is found to be true then the plaintiff has no case. 7. The courts below on appreciation of the documentary as well as oral evidence placed on the record has decreed the suit by inter alia holding that the properties in question are the ancestral properties in nature and thus there is unity of title and possession between the parties and the plaintiffs have not to lose their case because of any claim based on adverse possession. 8. In support of the claim of the appellants that title and interest in the suit properties have been vested in Md. Basriuddin pursuant to an Hiba (gift) made in his favour by his father late Abul Hasan, reliance has also been placed on the evidence of D.W. 8 (Deonarain Mahto) and D.W. 9 (Ramdeo Sah). These witnesses have failed to say as to who had gifted and when gifted and according to them they had merely heard about the alleged gift. Such oral evidence can not form the basis for recording a finding of Hiba (gift). The Court below has rightly refused to give any credence to such evidence. I am also of the view thi1t the defendants could not place on the record any reliable evidence to prove the alleged fact that Abul Hasan had made any Hiba in favour of Md. The Court below has rightly refused to give any credence to such evidence. I am also of the view thi1t the defendants could not place on the record any reliable evidence to prove the alleged fact that Abul Hasan had made any Hiba in favour of Md. Basiruddin apart from this fact the story of Hiba is completely falsified from the registered Tamliqunama dated 26-10-1907 (deed of family arrangement) made by Most. Bakshan. The certified copy of this document which has been obtained on 11.11.1907 has been brought on the record as Ext. 5. It may be recalled here that Most. Bakshan is the mother of Abul Hasan and Abul Barkat, who had died during her life time. This document conclusively proves that how the shares of Abdul Hasan in the disputed properties had devolved on his heirs. The relevant portions of the document may be quoted hereunder : (I) Sheikh Fakhruddin, deceased, father of Munshi Abul Ghani, deceased, husband of me, the executant, had given his entire property to Sheikh Mohammad Abul Barkat and Sheikh Md. Abul Hasan, deceased sons and to his two daughters, namely, Most. Umdan and Most. Soghra. (II) Sheikh Mohammad Abul Hasan also died leaving behind Most. Taiyaban, wife and three sons, namely, Shri Sheikh Md. Hafeezul Haider, Sheikh Md. Basir and Sheikh Md. Nasru and three daughters, namely Fatima, Anisa and Khadeja, besides me, (mother), the executant. The executant got one sixth Most. Taiyaban, wife got one sixth share and the remaining share devolved to the shares of three sons and three daughters as per Islamic law. But Most. Taiyaban, wife of Sheikh Abul Hasan, deceased has not taken her share. At present she gifted her entire share to each of the two sons and each of the three daughters by virtue of oral Hibanama (Oral deed of gift) and put them in possession and occupation of the same. Accordingly, from today they are in possession and occupation thereof. Afterwards one of the sons of Sheikh Adul Hasan deceased, namely, Sheikh Md. Nasar as minor died without leaving any issue and wife. His share according to Islamic Law devolved to mother and two remaining brothers and three sisters. But Musammat Taiyaban, mother did not take any share from that inheritance and only Sheikh Md. Hafizul Haider and Sheikh Md. Afterwards one of the sons of Sheikh Adul Hasan deceased, namely, Sheikh Md. Nasar as minor died without leaving any issue and wife. His share according to Islamic Law devolved to mother and two remaining brothers and three sisters. But Musammat Taiyaban, mother did not take any share from that inheritance and only Sheikh Md. Hafizul Haider and Sheikh Md. Basar, two remaining brothers and each of the three sisters were entitled to his share and it is in their possession and occupation and they are appropriating the produce thereof. (III) The one-sixth share which me, the executant inherited from Sheikh Md. Abul Hasan, deceased, (torn) are still with Sheikh Md. Hafizul Haider, Sheikh Md. Basir, Fatma, Anisa and Khadija. In short it is the desire of me, the executant, that the sixth share inherited by me after the death of my issue should go to the issues of that deceased and since then me, the executant did not hinder nor put forward and have any contention or claim, but me the executant had not executed any deed of relinquishment of claim to them. (IV) In this way issues of Sheikh Md. Abul Hasan, deceased, that is Sheikh Hafizul, Sheikh Mohammad Basir, Fatma, Anisa and Khadija are in possession of the one sixth share inherited by me, the executant, from Sheikh Md. Abul Hasan, deceased son of me, the executant. Their possession in respect of the property left by their father is to this properties that the share of the son is double of the share of a (laughter and they are entitled to these shares. Similarly I, the executant, gave my one-sixth share inherited from Sheikh Md. Abul Hasan, deceased to both the sons and three daughters that is divided the one sixth share in seven shares and gave two sixth to each son that is to Sheikh Md. Hafizul Haider and Sheikh Md. Basir and gave one sixth to Fatma Anisa and Khadiza and all these five donees entered into their respective shares as proprietors. They were in possession with this properties from before with the consent of me, the executant. Now by virtue of this deed they entered into possession as absolute owners and become entitled to mutation and to all rights as proprietors. I the executant, ceased to have any concern or interest in any share. 9. They were in possession with this properties from before with the consent of me, the executant. Now by virtue of this deed they entered into possession as absolute owners and become entitled to mutation and to all rights as proprietors. I the executant, ceased to have any concern or interest in any share. 9. From the above narrations, it is beyond any spell of doubt that the share of Abul Hasan had passed into his heirs i.e., surviving sons and daughters according to Mohammedan Law of Inheritance and the original plaintiff had subsisting title and interest in the disputed properties. 10. The contesting defendants have placed heavy reliance on the entries made in the records of right, which was prepared as per the survey held in the year 1910. In the said entries Basiruddin and two daughters of Abul Barkat, namely Saira and Hazra have been shown to have 1/3rd share each in the properties. It is obvious that the entries are obviously wrong because it is not in dispute that the two branches, namely, that of Abul Barkat and Abul Hasan were having half share each and, therefore, 2/3rd share could not have been shown in the branch of Abul Barkat. To substantiate this fact, assertions made in the plaint in paragraphs 1 to 4, which have gone uncontroverted on the record are quite material. According to para 3 of the plaint, during survey operation the original plaintiff and her two sisters were minors, unmarried and Pardanasins and so wrongly their names were not recorded in the Khatiyan since the survey work was being looked after by Basiruddin and one Khalilur Rahman. 11. Moreover, it is now well established that an entry in the record of right neither creates nor extinguishes the rightful title of a person in the immovable property. In the case of Nand Kumar Rai vs. State of Bihar and others (1974 PLJR, 27 (F.B.) it has been held that, (i) An entry in the record of rights does not create any title in favour of any person. The presumption of correctness of entry could be displaced-vide decision of the Supreme Court in Harihar vs. Deonarain (1956 BLJR 306) and Most. Mohini vs. Fariduddin (1966 BLJR 761). (ii) It is not necessary to bring a suit to avoid presumption arising under section 106 of B.T. Act vide Ram Gulam Vs. The presumption of correctness of entry could be displaced-vide decision of the Supreme Court in Harihar vs. Deonarain (1956 BLJR 306) and Most. Mohini vs. Fariduddin (1966 BLJR 761). (ii) It is not necessary to bring a suit to avoid presumption arising under section 106 of B.T. Act vide Ram Gulam Vs. Vishnu (11 C.N.T 48) (iii) An entry in the record of rights neither creates nor extinguishes rights vide Brij Bihari vs. Sheo Shankar 2 P.L.J. 124). 12. Having come to the conclusion that the suit properties are ancestral in nature and the original plaintiff has right, title and interest in it to the extent of her share, it now needs to be considered the other grounds raised by the appellants against the sustainability of the impugned judgment and decree. But before doing so some more facts leading to claiming of interest by the defendants-appellants in the suit properties are required to be noticed. 13. It is not in dispute that the total area of the land of the family is 6.60 acres. Out of the said area, Basiruddin had sold 2.66½ acres claiming to be his entire share 2 in the suit properties to Khalil alias Kalimuddin, the vendor of the appellants by a sale deed dated 17.2.1943, which has been filed as Ext. D. The appellants are purchasers from Khalil out of the said lands to the extent of 1.47 acres and 0.53 acres. The Sale deeds are dated 30.5.93 and are placed on the record as Exts. D/1 and D/2. Therefore, the position that emerges is that out of half of the family lands which comes to 3.30 acres had fallen to the share of Basiruddin and his sisters including the original plaintiff. Out of that Basiruddin has sold 2.66½ acres 2 to Khalil and out of it the appellants acquired only 2 acres in total. 14. It appears that Khalil had filed Title Suit No. 8/44 for partition of the properties in question impleading only Hazra and the heirs of Saira which according to the appellant was decreed in terms of a compromise. The plaint of the said suit Written statement filed by Bibi Fahmida, daughter of Bibi Saira and the petition of compromise have been filed as Exts. 1 (a) 6 and E. As per the petition of compromise, Khalil got 2.77 acres and Hazra and Fahmida got 1.98½ acres and 1.84½ acre respectively. The plaint of the said suit Written statement filed by Bibi Fahmida, daughter of Bibi Saira and the petition of compromise have been filed as Exts. 1 (a) 6 and E. As per the petition of compromise, Khalil got 2.77 acres and Hazra and Fahmida got 1.98½ acres and 1.84½ acre respectively. On the basis of these documents it has been submitted on behalf of the appellants that the original plaintiff has no title in the ancestral land. The trial court has rejected the plea for the following reasons: (i) The original plaintiff was not a party to the said T.S. No. 8 of 1944 and, therefore, even if there was a compromise decree, it can not bind the plaintiff. (ii) Bibi Fahmida in her written statement, Ext. 6, has specifically pleaded that the sister of Basir (which includes the plaintiff) are necessary parties to the suit as they are co-sharers. (iii) The decree obtained in a Partition Suit without impleading all the co-sharers is a nullity. (iv) Khalil was purchaser of only 2.66½ acres of land out of the family properties and, therefore, there was no occasion for giving him 2.77 acres pursuant to the compromise. (v) No document has been filed on the record to show that any decree was passed by the court in said Title Suit in terms of the alleged compromise petition (Ext. E). Accordingly, the Court below held the said Title Suit to be collusive in my opinion, the grounds given by the Court below for not accepting the pleas of the appellants based on the filing of T.S. No. 8 of 1944 do not suffer from any infirmity. In my view as well the filing of the said Title Suit is of no consequence for determining the right and title of the original plaintiff in the suit properties. 15. The next plea taken by Mr. B.N. Sinha, learned counsel for the appellants is that though the original plaintiff had filed, Title Suit No. 171 of 1951 claiming certain right in the homestead land over plots no. 5933 and 6013 which was ultimately decreed in her favour but in that suit she did not chose to challenge the transfers made by Basiruddin in 1943 in favour of Khalil as per the sale deed Ext. D. Therefore, according to him, her claim of share in the suit properties can not be sustained. 5933 and 6013 which was ultimately decreed in her favour but in that suit she did not chose to challenge the transfers made by Basiruddin in 1943 in favour of Khalil as per the sale deed Ext. D. Therefore, according to him, her claim of share in the suit properties can not be sustained. In this connection, it has been noticed by the Court below that according to the original plaintiff she and her two sisters were living with their husbands at different places after their marriage and were pardanashin ladies. Therefore, the properties were being looked after and managed by Basiruddin jointly with Saira and Hazra. The subject matter of the aforesaid Suit namely plots no. 5933 and 6013 appertains to Khata no. 441 and used as home-stead land with residential house thereon. The, necessity of filing the said suit arose because some of the co-sharers had sold part of these plots in excess of their shares and the purchasers started creating troubles. It was because of cropping of disputes with the said purchasers that necessitated the filing of the said suit for partition by the original plaintiff, namely, Fatima and Bibi Khadija. The suit was decreed in their favour and they were given their possession over their separately carved out pattis In view of these facts, in my opinion there was no occasion on the part of the original plaintiff to challenge the validity of sale effected by Basiruddin in favour of Khalil in the said T.S. No. 171 of 1951. Moreover the sale effected by Basiruddin through Ext. D. was only to the extent of 2.66 1/2 acres and the total area of land falling in the hands of heirs of Abul Hasan. namely. Basiruddin and his sisters is 3.30 acres Thus this plea as well is absolutely of no consequence for determining the issue involved in the suit. 16. The last plea of the appellants is that there is ouster of the plaintiff-respondent as co-sharers and the title in the appellants is perfected by adverse possession. The Court below has considered this aspect threadbare by giving due consideration to the oral and documentary evidence and has recorded a finding of fact that no partition had ever taken place between the co-sharers and thus there was unity of title; and possession in the suit properties. The Court below has considered this aspect threadbare by giving due consideration to the oral and documentary evidence and has recorded a finding of fact that no partition had ever taken place between the co-sharers and thus there was unity of title; and possession in the suit properties. It has also been found by the trial Court that there is no acceptable evidence on the record to show that there was at any time any open assertion of hostile title coupled with exclusive enjoyment by the appellants to the knowledge of the plaintiff. Learned counsel for the appellants could not seriously dispute the finding of fact recorded by the trial court in this regard. Nonetheless he sought to fortify his plea by placing reliance on a Bench decision of this Court in the case of Sk. Md. Zafir vs. Sk. Amiruddin (A.I.R. 1963 Patna, 108) (Pr. 11). In my opinion, this case can not, in any way supports the appellants because in this case on appreciation of evidence it has been recorded that, “The evidence and the circumstances point out to the irresistible conclusion that the guardians of the plaintiff and the plaintiff were aware of the hostile title asserted by defendant no. 1 in respect of those properties and he (defendant no. 1) was in adverse possession thereof to the knowledge of the plaintiff. This state of affairs has continued from a very long time and the plaintiff's claim, in that respect is much too belated.” This is not the situation here. The law of adverse possession and ouster of co-heirs has recently been reiterated by the Supreme Court in the case of Mohd. Zainulabudeen vs. Sayeed Ahmed Mohideen and others (A.I.R. 1990 S.C. 507) (Pr. 12). It has been held by their Lordships that, "It is well settled that where one coheir pleads adverse possession against another co-heir then it is not enough to show that one out of them is in sale possession and enjoyment of the profits of the properties. The possession of one co-heirs is considered in law as possession of all the co-heirs. 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-heir's title. The possession of one co-heirs is considered in law as possession of all the co-heirs. 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-heir's title. Thus it is a settled rule of law 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 construe ouster. 17. In a Bench decision of this Court in the case of Jagdeo Narain Singh and others vs. Ram Lagan Gope and others (1958 B.L.J.R. 111) it has been held that, "it has been well settled by a series of decisions of this Court and of other High Courts that in order to establish ouster as between co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others and that mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive. This principle was laid down in the case of Jagnnath Marwari vs. Smt. Chandni Bibi (26 C.W.N. 65) and the principle was reiterated by a Division Bench of this Court in Dip Narain v. Pundeo (I.L.R. 25 pat. 412) and also in a recent decision of this Court in Musammat Mogian vs. Abdul Geni (1956 B.L.J.R. 700). Applying the principle to the present case, we are of the opinion that the case of ouster put forward by defendant no. 5 has not been established in this case and the plaintiffs are entitled to a decree for partition of their 8 annas share of both the disputed plots." 18. In the present case, as noticed above, the appellants have miserably failed in making out a case of ouster against the plaintiff respondent and perfection of their title based on the principle of adverse possession. Therefore, this plea is also of no consequence for them. 19. For the reasons as aforesaid, in my opinion, no interference is called for in the judgment and decree of the Court below. The present appeal is, therefore, dismissed with cost throughout against the appellants-defendants no. 20 to 22.