JUDGMENT KULDIP CHAND SOOD, J.(Oral):- Plaintiff-appellant Mool Raj. having lost before the trial Court and the first Appellate Court is in second appeal under Section 100 of the Code of Civil Procedure. 2. The undisputed facts are: 3. Land subject matter of dispute measuring 78 kanals 18 marlas, comprised in khasra numbers 213 to 218, situate in village Bhahal Nalochan, Mauza Dhatwal, Tappa Barsar District Hamirpur, hereafter referred to as "land in dispute" as per jamabandi for the year 1977-78, was owned by Sunder, Mahanti, Najku and Mussadi in equal shares, i.e., each one of them had 14th share in the "land in dispute". After the death of Mussadi, he was succeeded by his son Mool Raj, Plaintiff and Chhangan defendant Sunder and Najku mortgaged their respective shares with possession with Mool Raj and Chhangan in the year 1940. Mahanti on her death was succeeded by Sunder. Thus, after the death of Mahanti, Sunder became owner of half share in the suit land. Out of the remaining half share Najku had 1/4th share. The plaintiff along with Chhangan also had 1/4th share in the land in dispute. It is pertinent to notice that 1/4th share of Najku and the other 1/ 4th share of Sunder was not mortgaged with the plaintiff and defendant No. 10. However, 1/4th share of Mahanti inherited by Sunder was not mortgaged. Shambhu Ram (defendant No1) succeeded to the share of Sunder i.e., 1/ 4th share mortgaged with the plaintiff and an her 1/4th share which was not mortgaged, Shambhu Ram sold his entire share i.e. share in the land in dispute to defendants No. 2 to 9 by a registered sale deed on 13.9.1982. 4. The plaintiff filed a suit for declaration that he has become owner in possession of the land in dispute and further sought injunctive strain on the defendants from interfering in his possession over this land. The case of the plaintiff, as set up in the plaint was that 1/4th share each of Sunder and Najku, was mortgaged with the plaintiff and defendant No. 10 which was not redeemed and by afflux of time, he had become owner of this land. So far 1/4th share of mahanti was concerned, he became owner of her share by way of adverse possession which was inherited by Sunder and subsequently passed on to defendant No.1. So far 1/4th share of mahanti was concerned, he became owner of her share by way of adverse possession which was inherited by Sunder and subsequently passed on to defendant No.1. It was pleaded that on 12.2.1982, defendant Shambhu sold 19 Kanals 15 marlas out of the land in dispute to the defendants No.2 to 9 who under the garb of this sale, are interfering with the possession of the plaintiff. It is in this back ground, the plaintiff prayed for a decree for declaration that plaintiff has become owner in possession of the unmortgaged share of Mahanti which was passed on to Shambhu. 5. The suit was resisted by the contesting defendants, including defendant No.1. It was stated that the plaintiff cannot claim to be co-sharer in the disputed land and at the same time, claim adverse possession over it. It was pleaded that defendants No.2 to 9 purchased 1/4th share in the land in dispute1 from Shambhu Ram and they were put into possession qua the unmortgaged 1/4th share. It was pleaded that the plaintiff never objected when mutation of sale was attested. 6. Learned trial Court settled several issues. The plea of the plaintiff th£t he had become owner in respect of unmortgaged 1/4th share in the land in dispute was rejected. However, suit was partly decreed to the effect that the plaintiff and defendant No.10 were declared to be the owners in possession of 3/4th share of the suit land, learned trial Court also passed a decree against the contesting defendants restraining them from interfering with the possession of the "land in dispute" till it is partitioned. 7. In first appeal, learned District Judge vide his judgment and decree dated 3.1.1994, impugned herein, reaffirmed the findings of the trial Court holding that the plaintiff has neither pleaded nor proved ouster of Mahanti, a co-sharer and, therefore, the plaintiff cannot be said to be in adverse possession of 1/4th share of Mahanti in the "land in dispute". 8. This appeal was admitted on 4.1.994 on the following substantial questions of law: 1. Whether the courts below have failed to appreciate oral and documentary evidence as produced on record. 2. Whether the appellant has acquired ownership over the entire suit land including share of Smt. Mahanti Devi, by virtue of adverse possession. 9. I have heard Mr. G.D. verma, learned Senior counsel for the appellant and Mr. Whether the courts below have failed to appreciate oral and documentary evidence as produced on record. 2. Whether the appellant has acquired ownership over the entire suit land including share of Smt. Mahanti Devi, by virtue of adverse possession. 9. I have heard Mr. G.D. verma, learned Senior counsel for the appellant and Mr. Tarlok Chauhan, learned counsel for the respondents No.1 to 9 and gone through the record. Question No.1. Whether the courts below have failed to appreciate oral and documentary evidence as produced on record. 10. Learned counsel for the appellant could not point out any evidence which was not considered by the trial Court or the first Appellate Court Mr. Verma, learned Senior Counsel then contended that the question of appreciation of evidence is linked with the question whether the appellant has acquired ownership rights on the share of Mahanti by adverse possession. This question is non-existent and does not call for any answer. Question No.2 Whether the appellant has acquired ownership over the entire suit land including share of Smt .Mahanti Devi by virtue of adverse possession. 11. Mr. G.D. Verma, learned Senior Counsel for the appellant, vigorously urged that bath the Courts having found the plaintiff and defendant, No.10 to be in exclusive possession over the entire land including the share of Mahanti could not have held that the plaintiff was not in adverse possession of 1/4th share of the land of Mahanti which was subsequently passed on to defendants No.2 to 9. The argument is : The very fact that the plaintiff and defendant No. 10 were in exclusive possession of this land, would establish that there is ouster of Mahanti and consequently her successor Shambhu Ram establishing adverse possession of the plaintiff over 1/4th share of Mahanti. 12. Mr. Verma, refers to Bejoy Gopal Mukherji vs. Pratu Chandra Ghose, A.I.R. Sup. Court 153, M/s Orient Distributors v. Bank of India Ltd., A.I.R. 1979 Supreme Court 687, kalika Parsad v. Chattarapal Singh, 1977 S.C. 1699 and Chandrabhagabai and others v. Ramakrishna and others. A.I.R. S.C. 2549 and argued that plea of adverse possession is not merely a question of fact and if the plaintiff is able to show that he has been in possession of the share of Mahanti for more than statutory period of 12 years, then he is entitled to the declaration as prayed for by him. 13. A.I.R. S.C. 2549 and argued that plea of adverse possession is not merely a question of fact and if the plaintiff is able to show that he has been in possession of the share of Mahanti for more than statutory period of 12 years, then he is entitled to the declaration as prayed for by him. 13. In Bejoy Gopal, the Apex Court was considering the question of permanent tenancy. The trial Court found that the tenancy of the defendant was permanent, heritable and transferable and not liable to be determined by notice. The High Court dismissed the appeal against this finding. It was contended that the appeal was not concluded by concurrent findings of Courts below as per the un-amended provisions of the Code of Civil Procedure and the question was one of the proper inference of law to be deduced from the facts as found by the court below. It is in these circumstances, the Supreme Court entertained the appeal. 14. In Orient Distributors, considering Section 100, prior to its amendment in 1976, the Apex Court held that inference to be drawn from facts and surrounding circumstances is not purely factual and relates to propriety of the legal conclusion that could be drawn on the basis of proved facts and circumstances of that case. 15. In Kalka Prasad, plaintiff filed a suit for declaration of title and for possession of the land in suit. The respondent pleaded adverse possession. The trial Court recorded findings that respondent was in adverse possession having remained in possession for more than 12 years. The District Judge reversed the findings in appeal holding that the respondent came into possession under a power of attorney and, therefore, he was in possession as agent of the principal for more than the statutory period prior to the filing of the suit, in this context, the Supreme Court observed that in second appeal, finding was recorded that even after the abolition of the power of attorney, the respondent remained in uninterrupted possession and thereby perfected his title and, therefore, the findings cannot be said to have been vitiated by any manifest error of law and such finding did not call for interference in the appeal before the Supreme Court. 16. 16. In Chandrabhagabai, both the trial Court and the first Appellate Court found thatS1 was in possession of the suit premises for a continuous period of 30 years prior to the date of the suit. The plea of the opposite party that he was in possession as tenant, was rejected. It was held that S1 has become owner of the property by adverse possession. This finding was confirmed by the High Court. The Supreme Court dismissed the appeal. 17. All these authorities does not help the plaintiff-appellant in any manners. 18. Mr. Tarlok Chauhan who argued this case with considerable , tenacity contends : (a) There is neither pleading nor evidence of the ouster of co-sharer Mahanti and, therefore, plaintiff though in exclusive possession of the disputed land, cannot be said to be in adverse possession so far the share of Mahanti is concerned. (b) The plea of adverse possession is purely a question of fact and this Court should not interfere with the findings on this question in second appeal. 19. Mr. Verma, learned Senior Counsel contends that the plaintiff did not permit any person, including the present defendants and Mahanti Devi, to interfere in the possession of the plaintiff. Therefore, the plaintiff would be deemed to be in adverse possession of the share of Mahanti at least since 1950 the revenue entries of which year show the plaintiff to be in exclusive possession of the land in dispute. 20. Ordinary classical requirement of adverse possession is that it should be nee vince calm nee precario. The possession required must be adequate, in continuity in publicity and, in, extent, to show that the possession is adverse to the party against whom adverse possession is claimed. It is now well settled that possession of one co-heir is that of another co-heir in law. The possession of a co-heir or a co-sharer is presumed to he on the basis of the joint title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive hostile possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster (Sec: P. Lakshmi Reddy v. Lakshmi Reddy, A.I.R. 1957 S.C.314). 21. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive hostile possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster (Sec: P. Lakshmi Reddy v. Lakshmi Reddy, A.I.R. 1957 S.C.314). 21. A mere occupation of the joint property by one of the co-sharer does not amount to ouster, In principle the possession of one is deemed to be possession on behalf of all except where there is ouster of a co-sharer by another. For the purpose of ouster, exclusive possession alone is not sufficient, it must at the same time be shown to be hostile to the knowledge of the co-sharer against whom such adverse possession is claimed. 22. In a plea of ouster of a co-sharer, foundation must be laid in the plaint itself and such a plea has to be proved by leading appropriate evidence of open and hostile assertion of the title, apart from exclusive possession and enjoyment, to the knowledge of the other. In the present case, neither there is a foundation in the plaint nor any evidence to show that the plaintiff ever asserted his hostile title, before the filing of the suit, to the knowledge of contesting defendants or their predecessor Mahanti Devi. Para 3 of the plaint, which is the only plea of adverse possession, reads: "That the plaintiff has become an owner by way of adverse possession of the mortgaged share of Mahanti Devi deceased which after her death passed on to the defendant No.1". 23. The plaintiff does not say when exactly, the hostile animus commenced. What plaintiff pleads is that after the death of mahanti, he became owner by adverse possession. He does not say when he exhibited his hostile animus was entertained by him during the life time of Mahanti or even subsequently. 24. Defendants maintain that the plaintiff cannot be co-sharer and yet in adverse possession of the land when he has not spelled out "when his adverse possession started and the necessary ingredients constituting adverse possession are not alleged which was must". 25. Mr. 24. Defendants maintain that the plaintiff cannot be co-sharer and yet in adverse possession of the land when he has not spelled out "when his adverse possession started and the necessary ingredients constituting adverse possession are not alleged which was must". 25. Mr. Chauhan refers to Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528 and submits that a Division Bench of the Punjab & Haryana High Court in this case after digesting case law in extenso, laid down the propositions when ouster may constitute. 26. In Sant Ram the Division Bench in para 22 of the judgment observed: "22. The next question is, what is ouster in the eye of law, in order to enable a Co-owner out of possession, to sue the co-owner in exclusive possession for joint possession or partition. In the case of co-owners, the test of ouster is more exacting then in the case of strangers. Whereas in the latter case exclusive possession may be deemed sufficient to constitute adverse possession on the part of a stranger, a similar conduct on the part of a co-owner will be insufficient for basing the plea of adverse possession. The reason for this distinction is that in the case of co-owners the possession of one is held to be for the benefit of all. In Prescott v. Novers. (1827) 4 Mason 326, it was said that: "The only difference between ii\e possession of a co-owner and other cases is that, acts, which, if done by a stranger would per se be a disseisin, are in the cases of tenancies in common perceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common, acts of disseisin." (emphasis supplied). 27. The adverse possession by ouster of a co-owner in exclusive possession commences when such co-owner repudiates the title of the other and asserts the title to the entire property in himself with a notice to other co-owners. If such adverse possession continues uninterrupted for a statutory period of 12 years, the title becomes adverse to the co-owners ousting them from their rights. 28. In the present case, as noticed earlier, there is no evidence on record showing when precisely, plaintiff asserted his hostile animus against the title of Mahanti Devi or her successors to their knowledge. If such adverse possession continues uninterrupted for a statutory period of 12 years, the title becomes adverse to the co-owners ousting them from their rights. 28. In the present case, as noticed earlier, there is no evidence on record showing when precisely, plaintiff asserted his hostile animus against the title of Mahanti Devi or her successors to their knowledge. Appearing as PW1, plaintiff merely states that the defendants did not object to his exclusive possession on this land. This indeed does not amount to hostile title of the plaintiff over the land in dispute. 29. This apart, when a possession of a person over a property is referable to his title, such possession cannot normally be considered to be adverse. In fact, such co-sharer holds possession as trustee on behalf of all the co-sharers. Reference may be made to Vidya Devi alias Vidya Vati (Dead) by LRS v. Prem Parkash and others (1995) 4 Supreme Court Cases 496. In that case Justice S. Sagir Ahmad concurring but for different reasons observed: "24 It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners". 30. Mr. Chauhan, refers to Mohd Zainulabudeen (since deceased) By LRS v Sayed Ahmed Mohideen and others, (1990) 1 Supreme Court Cases345, In that case, their Lordships held that when one co-heir pleads adverse possession against another co-heir, then it is not adverse possession. The possession of one heir is considered in law, as possession of all coheirs. A co-heir in possession cannot claim his possession adverse to the other co-heirs not in possession merely by secret hostie animus coupled with exclusive possession and enjoyment by one of them to the knowledge of others so as to construe ouster. 31. A Division Bench of our own High Court in Shiv Saran Singh Thakur v. Shri Ram Thakur and others, 1989 (1) Sim. 31. A Division Bench of our own High Court in Shiv Saran Singh Thakur v. Shri Ram Thakur and others, 1989 (1) Sim. L.C. 119, observed that in case of adverse possession by a co-owner, the law requires strict proof of "open assertion of hostile title, coupled with the exclusive possession and enjoyment by one of them to the knowledge of others so as to constitute ouster". 32. In the present case, neither the plaintiff-appellant laid any foundation in the pleadings about the ouster of Mahanti Devi, his co-sharer or her successor-in-interest nor led any evidence about the hostile animus to the knowledge of the co-sharer against whom adverse possession is claimed before the filing of the suit. 33. The conclusion arrived at by the trial Court and the first Appellate Court, for foregoing reasons, cannot be faulted with. 34. The second contention of learned counsel for the respondents that the question whether the plaintiff-appellant was in adverse possession or not is a question of fact and this Court cannot go into that question, in second appeal, is also unexceptional in my view. 35. Mr. Tarlok Chauhan refers to Parkash Chand v. Bhagat Ram and others, 1993 (2) Sim.L.C.335. In that case, learned Single Judge of this Court relying upon Shobha Nath v. Ram Baran, AIR 1954 All, 493 and Smt. RajKumari v. Board of Revenue, UP. Allahabad and others, 1982 All LJ.1281, held that findings on the question of adverse possession are findings of fact and the High Court cannot go into that question in second appeal even if such findings are erroneous. 36. In Abdul Qadir (Dead) By LRS v. Maimoona Khatoon (Smt) (Dead) By L.Rs (1996) 3 Supreme Court Cases 500, appellant raised a plea before the Supreme Court that High Court and the Deputy Director erred in recording a finding that the appellant was not in adverse possession in the face of the proceedings initiated by the Assistant Director of Custodian and Evacuee Property and sale thereof by them. In this context, the learned Judge observed that question "Whether the appellant is in adverse possession is a finding of fact recorded by the Deputy Director as upheld by the Division Bench, Under these circumstances, we cannot go into the question for the first time in this appeal". (emphasis supplied). 37. In this context, the learned Judge observed that question "Whether the appellant is in adverse possession is a finding of fact recorded by the Deputy Director as upheld by the Division Bench, Under these circumstances, we cannot go into the question for the first time in this appeal". (emphasis supplied). 37. The finding recorded by the trial Court and the Appellate Court that plaintiff-appellant is not in adverse possession, having not proved ouster of Smt Mahanti Devi, in my view, is a finding of fact and such a finding is not open to challenge under Section 100 of the code of civil Procedure. The Question is accordingly answered. No other point is urged before me. In result, appeal fails and is dismissed with costs.