Judgment Shiva Kirti Singh, J. 1. Plaintiffs are the appellants in this appeal preferred against the Judgment and Decree dated 31.1.1978 passed in a partition suit whereby the prayer for partition of the share of plaintiffs in the suit land described in Schedule-l to the plaint has been rejected by the trial court on the ground that plaintiffs did not enjoy jointness of title and possession on account of previous partition of the entire suit land among defendants 1, 2 and 3 and that the defendants have successfully proved ouster of the plaintiffs from the suit lands. 2. The material part of the genealogy given by the plaintiffs is not in dispute. According to the said genealogy Sheikh Taj All the common ancestor had two wives namely Budhni and Nazo. From Nazo he had two sons Sk. Nasir whose son Abdul Ghani is defendant no. 3. The other son Sk. Mahamdoo had three sons and three daughters, Defendant no. 1 Sk. Shamsuddin and defendant no. 2, Sk. Abdur Razzaque are two of his sons whereas plaintiff no. 1, Bibi Batoolan is widow of third son Sk. Farid Uddin. Bibi Batoolan had three daughters and the remaining plaintiffs are daughters of Bibi Batoolan or heirs of her daughter. Sk. Shamsuddin admittedly died much before the filing of the present suit. It is the case of the plaintiffs that Bibi Sabiran a daughter of Taj Ali and sister of Sk. Nasir and Sk. Mahamdoo received 8 annas share in the property of her mother Nazo and she sold her share of khata nos. 454 and 455 under registered sale deed dated 4.11.1943 in equal shares to Sk, Shamsuddin, Sk. Farid Uddin and Sk. Abdur Razzaque the three sons of her brother Sk. Mahamdoo. As a result the aforesaid three brothers came to own and possess 4 annas 1 1/5 pies in khata nos. 454 and 455 over which they remained in joint possession. The total lands of these Khatas 19.84 acres was originally the land available for partition as per original Schedule-I to the plaint. Subsequently by amendment 1.84 acres of land of khata no. 39 and 0.84 acres of land of khata no. 454 and 455 over which they remained in joint possession. The total lands of these Khatas 19.84 acres was originally the land available for partition as per original Schedule-I to the plaint. Subsequently by amendment 1.84 acres of land of khata no. 39 and 0.84 acres of land of khata no. 639 were included in the Schedule-I and plaintiffs claimed the land of these khatas also as joint lands available for partition, although these lands were purchased in the year 1941 through registered sale deed in the names of defendant nos. 1 and 3 only. The plaintiffs have claimed one anna 4/11 pies share in the suit lands noticed above. 3. Further case of the plaintiffs is that out of 4 annas 1 1/5 pies share of Sk. Farid Uddin, one anna 4/11 pies belonging to Jarina Khatoon, one of his three daughters was gifted by Jarina to her minor daughter Bibi Noor Jahan (Plaintiff no. 6) and the said gift was accepted by her father and guardian Md. Khalil because Bibi Noor Jahan \ was minor at that time. 4. The suit was contested by defendant nos. 1, 2 and 3 who filed a joint written statement. According to these defendants Sk. Farid Uddin died in December, 1946 and before his death he made an oral gift of his entire properties in favour of these defendants. Their further case is that after the aforesaid oral gift Fariduddin or his heirs had no possession over the lands concerned and in 1952 these three defendants partitioned the lands in question between themselves. The case of contesting defendants is that they came in possession over their respective shares of land after partition in the year 1952 to the exclusion of all others and hence they have perfected their title even by adverse possession much before the partition suit was filed in the year 1971. Through additional written statements these defendants raised a further defence that the lands of khata nos. 39 and 639 were separate and individual acquisition through registered sale deed of the year 1941 and hence it was not available for partition as joint property. 5. Noticing the aforesaid main case of the contesting defendants the trial court framed ten issues for trial which included issue relating to limitation and adverse possession as issue no. 4; relating to unity of title and possession between the parties as issue no. 5. Noticing the aforesaid main case of the contesting defendants the trial court framed ten issues for trial which included issue relating to limitation and adverse possession as issue no. 4; relating to unity of title and possession between the parties as issue no. 5; relating to oral gift by Fariduddin and its validity as issue nos. 6 and 7. While trying the aforesaid issues the trial court disbelieved the story of oral gift by Sk. Fariduddin and also held that such oral gift of agricultural land was invalid in view of provisions in the Bihar Tenancy Act. It also found the lands of khata nos. 39 and 639 as joint lands of the family. However, the suit was dismissed on the finding that defendants have succeeded in proving partition of the entire suit lands between defendants 1, 2 and 3 in the year 1952 and they have also proved ouster of the plaintiffs and perfected their title by adverse possession. 6. Learned counsel for the appellants initially challenged the findings given against the appellants on the issues of previous partition, ouster and adverse possession but subsequently he also argued to support the findings with regard to oral gift as well as nature of lands of khata nos. 39 and 639 because learned counsel for the respondents sought to persuade this court to reverse the findings on those issues which had been decided by the trial court against the defendants/respondents. 7. Thus, the main issues to be decided in this appeal are; (1) whether the story of oral gift by Sk. Fariduddin in the year 1945 as propounded by defendant nos. 1 to 3 is correct and whether such a gift if made is valid in law, (2) whether the contesting defendants have successfully proved ouster and adverse possession against the plaintiffs and (3) whether the lands of khata nos. 39 and 639 are joint lands available for partition or are the self acquired properties of defendants 1 to 3. 8. So far as story of oral gift by Sk. Fariduddin is concerned, no documentary evidence has been brought on record to support the alleged circumstances that Sk. 39 and 639 are joint lands available for partition or are the self acquired properties of defendants 1 to 3. 8. So far as story of oral gift by Sk. Fariduddin is concerned, no documentary evidence has been brought on record to support the alleged circumstances that Sk. Fariduddin was suffering from T.B. and was in fear of death on account of such disease and hence he made the oral gift in favour of defendants 1 to 3 because they allegedly had looked after him during his illness and had met the entire cost of his illness. Besides defendant no. 1, Sk. Shamsuddin who has been examined as D.W. 25, only D.Ws. 3 and 5 have attempted to support the story of oral gift by Sk. Fariduddin. None of these two witnesses belonged to the village of the parties and learned trial court has rightly disbelieved their claim in view of deposition of plaintiff no. 1, Bibi Batloon (P.W.8) who denied that her husband died due to T.B. P.Ws. 1 to 6 have also denied that Sk. Fariduddin died due to T.B. Out of them P.Ws. 1, 2 and 3 are co-villagers of the parties. The allegation that plaintiff no. 1 was not looking after her husband during his illness is also not found acceptable in view of evidence of D.W. 25 to the effect that he had asked his wife to ask the plaintiff no. 1 not to have intimate relation with her husband on account of his ailment. Defendants have also failed to establish the exact time when the oral gift was allegedly made by Sk. Fariduddin. For all these reasons this Court also finds that the defendants 1 to 3 have faiied to prove the story of oral gift of all his property by Fariduddin. 9. Once it is held that Sk. Fariduddin never made the oral gift then it is not necessary to examine the question as to whether such oral gift of agricultural land could be valid in law in view of provisions of Bihar Tenancy Act which require transfer of occupancy holdings only by registered document. However, in fairness to learned counsel for the respondents it must be noticed here that on this issue the learned trial court held that such oral gift of agricultural land would be invalid, on the basis of a judgment of this court in the case of Most. However, in fairness to learned counsel for the respondents it must be noticed here that on this issue the learned trial court held that such oral gift of agricultural land would be invalid, on the basis of a judgment of this court in the case of Most. Bibi Sharif an vs. Sk. Salahuddin (1959 BUR 757). But much after the judgment of the trial court the said judgment was over-ruled by a Division Bench Judgment of this court in the case of Bibi Rehana Khatoon vs. Bibi Jabrunnisa (1987 PLJR 934). However, this aspect of the matter need not be examined further because of the finding recorded earlier that no oral gift was made by Sk. Fariduddin. 10. So far as the second point relating to story of partition in 1952, ouster and adverse possession thereafter is concerned, it is noticed that admittedly no document was prepared at the time of alleged partition nor any memorandum of partition was subsequently prepared and signed by the concerned parties. The onus of proving the previous partition of all the joint lands so as to exclude the other rightful owners and to prove ouster and averse possession lies upon the contesting defendants. As noticed by the trial court, besides D.W.25 there is evidence of D.Ws. 3, 4 and 13 on the point of partition and separate cultivation by contesting defendants. Defendant witness no. 3 besides being Samadhi of defendant no. 3, admitted that the partition did not take place in his presence. D.W. No. 4 is not a co-villager of the parties and he also admitted that partition did not take place in his presence. According to D.W.13 who is a co-villager aged about 31 years, he attained "Hosh" at the age of 12 years and therefore he was clearly not a competent witness on the point of actual partition as noticed by the trial court also. In such circumstances it is necessary to look to the documentary evidence which has been adduced on behalf of the contesting defendants. A perusal of the rent receipts contained in Exhibit-B series shows that some of the rent receipts such as exhibit B/1d, B/19, and B/20 have been issued separately but they relate to same area, same land and same year. They all have been issued in the name of Sk. Shamsuddin but on different dates. A perusal of the rent receipts contained in Exhibit-B series shows that some of the rent receipts such as exhibit B/1d, B/19, and B/20 have been issued separately but they relate to same area, same land and same year. They all have been issued in the name of Sk. Shamsuddin but on different dates. This itself raises a doubt regarding genuineness of such rent receipts. It cannot be comprehended as to why three genuine receipts may be issued for the same land, same area to the same person on different dates. Rent receipts only show fiscal arrangement for payment of rent and it is well established in law that they do not prove title. Learned counsel for the appellants has rightly placed reliance on this aspect of the matter upon judgment of the Supreme Court in the case of Jattu Ram vs. Hakam Singh and others [1994 (1) PLJR (SC) 18J. That case related to claim of title and the Apex Court held that Jamabandi Entries are only for fiscal purpose and create no title. Moreover the Jamabandi documents have not been proved as exhibits to show that separate demands have been entered only against the contesting defendants. The alleged partition of 1952 is not supported by any survey entry because in course of revisional survey in the year 1970 itself objection had been raised by the plaintiffs. 11. So far as mortgage deeds exhibited as exhibits-E series are concerned, all the three exhibits (exhibits-E to E/3) have been executed by defendant no.3, Abdul Ghani in favour of out-siders. They do not disclose inter-party dealings. Exhibit E/2 dated 16.6.1954 is in respect of 37 decimals of land of plot no. 4118 appertaining to khata no. 39 whereas as per Schedules 1, 2 and 3 to the written statement, 18 1/2 decimals of lands of plot no. 4118 were allotted to each of defendant nos. 1 and 2 and no share to defendant no. 3 on account of alleged partition in the year 1952. Alleged sale of lands of this plot by defendant no. 3 is not supported by any document. Hence this document, instead of supporting the story of earlier partition in fact dis-proves it and shows that as earlier receipts for all the lands were being issued in the name of defendant no.3, Abdul Ghani so he continued to deal with entire lands. 3 is not supported by any document. Hence this document, instead of supporting the story of earlier partition in fact dis-proves it and shows that as earlier receipts for all the lands were being issued in the name of defendant no.3, Abdul Ghani so he continued to deal with entire lands. So far as mentioning of names of Abdul Razza- que and Shamsuddin in the boundary of lands mortgaged by defendant no. 3 is concerned, in the facts of the case it cannot be sufficient evidence of actual partition of all the lands muchless an evidence to prove ouster and adverse possession. Exhibits C & D have been produced to show the stand of one Abdul Jabar, a relation and witness of the plaintiffs in a proceeding under section 144 Cr.P.C. On that basis it was sought to be shown that his case was not of joint possession and joint cultivation. The earlier statement of Abdul Jabar is not binding on the plaintiffs. Exhibit-2 the gift deed dated 3.3.1970 executed by plaintiff no. 1 in respect of 4.50 acres of the suit lands in favour of plaintiffs 3 to 5 has also been relied upon to show that the said deed of gift does not mention joint possession and joint cultivation. It is useful to remember that in case of co-owners even under Mohammadan Law, possession of one co-owner ensures to the benefit of other co-owners as is evident from a ruling of the Supreme Court relied upon by the appellants in the case of S.S.Gulam Ghouse vs. S.S.A.M. Kamisul ( AIR 1971 S.C. 2184 ). In paragraph-19 of the said judgment the Apex Court held in following words: "possession by one co-owners is not by itself adverse to other co- owners, on the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owners is in denial of title of coowners and the possession is in hostility to co-owners by exclusion of them." In view of such settled principles even if some of the defendants co-owners were in possession, the other co-owners will be entitled to presume such possession to be their own possession unless the co-owners in possession have committed such notorious acts openly which will establish their hostile possession against the other co-owners. 12 So far as pleadings of the contesting defendants are concerned, although they have pleaded in their written statement regarding adverse possession but besides the story of previous partition in the year 1952 and some rent receipts there are no particulars pleaded to make out a case of ouster of the plaintiffs from the lands of which they were admitted coowners. As noticed earlier the evidence regarding claim of partition in the year 1952 is not reliable and hence there is absolutely nothing to support the case of the contesting defendants that they have ousted the plaintiffs from the suit lands. There are no notorious hostile acts to warrant an inference of ouster in this case. Even if the story of partition in the year 1952 and issuance of rent receipts was accepted, it could not be conclusive to prove ouster because such acts could be very easily managed by some of the co-owners without attracting notice of the affected co-owners. Notice or knowledge of hostile acts must be proved against the co-owners against whom ouster is claimed. The contesting defendants have failed to prove such notice or knowledge. In such circumstances this court has no option but to hold that there was unity of title and possession over the suit land between the parties and the lands are available for partition as claimed by the plaintiffs. It is further held that the contesting defendants have failed to prove their case of ouster and adverse possession against the plaintiffs. 13. The only remaining question to be decided in this appeal is whether the lands of khata no. 39 and 639 of village Marui, Tola, Raja Bigha as fully described in Schedule-I of the plaint are joint family property available for partition as claimed by the plaintiffs or are individual property of defendants 1 to 3. The plaintiffs claim these lands as property of the family, purchased prior to the death of Fariduddin. According to the survey khatian, (Ext. 9) Sk. Mahamdoo and Abdul Ghani had half share in the lands of khata no. 39. Son of Mahamdoo was father of defendant nos. 1 and 2 and of Sk. Fariduddin and hence Sk. Fariduddin had some interest in the lands of khata no. 39 whereas the case of the contesting defendants in their additional written statement is that 1 acre 10 1/2 decimals of (and of khata no. 39. Son of Mahamdoo was father of defendant nos. 1 and 2 and of Sk. Fariduddin and hence Sk. Fariduddin had some interest in the lands of khata no. 39 whereas the case of the contesting defendants in their additional written statement is that 1 acre 10 1/2 decimals of (and of khata no. 39 were acquired by them, namely Abdul Ghani, Shamsuddin and Abdur Razzaque from their separate money. This claim is falsified by some extent by ext. 9 and is not supported by the sale deed which was only in the names of Abdul Ghani and Sk. Shamsuddin. It is clear that these lands were purchased during the life time of Sk. Fariduddin and at that time there was no partition between the contesting defendants and Sk. Fariduddin. Even the three separate schedules filed along with written statement of contesting defendants show that the lands of khata nos. 39 and 639 have been partitioned among all the three contesting defendants and Abdur Razzaque allegedly got equal shares in the lands of khata nos. 39 and 639. Thus, according to their own case the contesting defendants have helped the plaintiffs in proving that the lands of these khatas were not the separate properties of the contesting defendants. 14. Learned counsel for the respondents have placed reliance upon judgments of the Allahabad High Court in the case of Hardayal vs. Baburam Manohar Lal (AIR 1939 Allahabad 206) and in the case of Sabir Mohammad vs. Basir Mohammad (AIR 1961 Orissa 92) to submit that under the Mohammedan Law there is no presumption of joint family, joint family property and joint family funds and hence it must be proved that either there was in express terms or by implication on account of the conduct of the parties an agreement or there was relationship of principle and agent or any feduciary relationship between the parties and only then advantage of purchase in the name of one member of the family can go to other members. In this case there is no quarrel with the aforesaid proposition of law and findings recorded by the trial court on this issue are not based upon any presumption. The finding has been arrived at on the basis of materials available on record. This court also on the basis of all the available materials is of the opinion that the lands of khata nos. The finding has been arrived at on the basis of materials available on record. This court also on the basis of all the available materials is of the opinion that the lands of khata nos. 39 and 639 were not the individul propertier of defendant nos. 1 and 3. The acquisition was for the joint family and hence the lands are available for partition in this suit. 15. Although appellant no. 6, Bibi Noor Jahan was originally a defendant in this suit but later she was transposed as a plaintiff after she had attained majoiry. With regard to her claim of share, the learned court below has given a finding on the basis of materials available on record that she is not the daughter of Bibi Jarina. This court finds no good ground to interfere with the said finding as the same is based upon proper consideration of all the available materials and adverse inference was rightly drawn because she herself did not come forward to depose in favour of her claim. 16. In view of aforesaid findings the claim of appellant no, 6, Bibi Noor Jahan which has been rejected by the trial court is rejected and her appeal is dismissed. So far as claims of other plaintiffs are concerned, in view of findings recorded earlier the same has to be allowed and accordingly their claims for share and partition is allowed. To that extent the judgment and decree of the trial court is reversed. The parties are in agreement that as per calculation the remaining plaintiffs have rightly claimed one anna 6 6/11 pies in the entire suit property mentioned in Schedule-I. The suit is allowed to that extent. Let a decree for partition be prepared accordingly. In the facts of the case, the parties shall bear their own costs throughout.