JUDGMENT Gurusharan Sharma, J. 1. Sk. Neyamat, son of Sk. Lodhi of village- Chandwe, District Ranchi, left behind two widows, Faizan Khatoon arid Saro Khatoon and three sons, Sk. Aklu, Sk. Heyat and Sk. Amin from his first wife and two sons, Sk. Habbu and Sk. Musa, the plaintiff, from his second wife, Sk. Aklu left behind two sons, Sk. Kurban and Sk. Yunus, defendants 1 and 2. Sk. Heyat left behind three sons and a daughter, namely, Sk. Ahad Ali, Sk. Hanif alias Sk. Habib Sk. Dukh alias Sk. Mahabali and Mostt. Uttiman Khatoon alias Tima Khatoon, defendants 3 to 6. Sk. Amin left behind two daughters, Rejhani Khatoon and Rajidan Khatoon, defendants 7 and 8. 2. According to plaintiff, after death of Sk. Neyamat his mother was driven out from the house and was forced to take shelter in her parents, house at village Sukurhutu. She along with her son had to depend upon whatever paddy or other food qrains were given by defendants, which was also stopped later on in September (sic). 3. Plaintiff, therefore, filed suit for partition of his half share in the lands detailed in schedule at foot of the plaint. 4. Defendants 1 and 2 filed written statement and contested the suit. They denied Saro Khatoon to be second wife of Sk. Neyamat and plaintiff as his son. They also claimed that Sk. Heyat had predeceased his father and, therefore, defendants 3 to 6 were also not entitled to any share in the suit lands. Plaintiff had no interest in the suit lands and, therefore, partition suit was fit to be dismissed. 5. It was found that Mostt. Saro Khatoon was wife of Sk. Neyamat and Sk. Musa was her son from Sk. Neyamat. It was further held that plaintiffs story of receiving paddy and other food grains by Mostt Saro and Sk. Musa from defendants was a concocted one. Hence, defendants continued in adverse possession of the suit lands and Mostt. Saro Khatoon and her son, Sk. Musa, the plaintiff were ousted for more then 40 years and, accordingly the suit was hit by Articles 127 read with 144 of the Limitation Act. Defendants acquired title over the suit land, there was no unity of title and possession between the parties over the suit land and as such plaintiff was not entitled to get any relief. 6. Musa, the plaintiff were ousted for more then 40 years and, accordingly the suit was hit by Articles 127 read with 144 of the Limitation Act. Defendants acquired title over the suit land, there was no unity of title and possession between the parties over the suit land and as such plaintiff was not entitled to get any relief. 6. The trial court did not record any finding on issue No. 7 "whether Sk. Heyat pre-deceased his father Sk. Neyamat". It was observed that present suit was barred by law of limitation, principle of adverse possession and ouster of the plaintiff. It was no proper to give finding on issue No. 7. It was also held that there was previous partition in between the parties and in revisional survey Khatian names of contesting defendants and son of Sk. Heyat were recorded. 7. During the pendency of the suit the original plaintiff, Sk. Musa died, leaving behind two sons and two daughters who were substituted in his place. They have preferred present appeal against the impugned judgment and decree dated 16.4.1986 passed in partition suit No. 171 of 1980. 8. This Court has to consider whether trial Courts findings that suit was barred by law of limitation, adverse possession of the defendant and the ouster of the plaintiff was legal, valid and justified. 9. In this regard plaintiffs adduced oral evidence. PW 1 in paragraph 6 of his cross-examination stated that Sk. Musa during his life time was doing joint cultivation over the suit land with defendants and used to divide the crops of his share. PW 4 stated that Sk. Musa used to receive paddy of his Share from the lands of village Chandwe. In paragraph 6 of his cross-examination, the said witness stated that 3-4 years earlier to the death of Md. Musa he was not getting paddy from Chandwe. At times Sk. Musa used to bring paddy himself from Chandwe. In paragraph 7 he stated that some times Sk. Musa used to bring paddy on bullock cart and some times on Horse. Some time his nephew, Yunus also used to deliver paddy to him on bullock cart. PW 6 stated that from out of produce of Chandwe land Sk. Musa and his mother used to receive paddy of their share. They used to bring the same on bullock cart. Musa used to bring paddy on bullock cart and some times on Horse. Some time his nephew, Yunus also used to deliver paddy to him on bullock cart. PW 6 stated that from out of produce of Chandwe land Sk. Musa and his mother used to receive paddy of their share. They used to bring the same on bullock cart. In paragraph 7 of his cross-examination the said witness stated that 6-7 years earlier Sk. Musa used to get paddy from Chandwe. He had seen Sk. Musa brining paddy on bullock cart and rickshaw, Bullock cart was driven by Sk. Musas nephew, Yunus, who was party defendant in the suit. PW 7 stated that when mother of Sk. Musa brought him to village Sukurhuttu from Chandwe, they used to get paddy from Chandwe. At times he had himself delivered paddy from village Chandwe to them. In paragraph 8 of his cross-examination he stated that he had delivered paddy to the mother of Sk. Musa at village Sukurhuttu both before and after the year 1940. At times his brother Sk. Aklu, father of Sk. Yunus had also delivered paddy at village Sukurhuttu. He had seen Sk. Yunus also delivering paddy. Since last 5-6 years he was not asked to deliver paddy. PW 8 a resident of village Sukurhuttu stated that Sk. Musa was getting paddy from his fathers land in village Chandwe. In paragraph 4 of the cross-examination he stated that some times Sk. Kurban and Sk. Yunus (defendant 1 and 2) had also delivered paddy to Sk. Musa at village Sukurhuttu. Sk. Musa also used to go to village Chandwe. Every year the said witness claimed to have seen Sk. Musa brining paddy. Since last 6-7 years he was not getting paddy of his share from village Chandwe. PW 10 was son of Sk. Heyat stated that at village Sukurhuttu Sk. Musa and his mother used to get paddy of their share. In paragraph 8 of the cross-examination the said witness stated that he and other co-sharer used to give paddy of his share to Sk. Musa. PW 11 was son of Sk. Musa, who supported the statement made in plaint and claimed that his father was getting usufruct of his grant-fathers land at village Chandwe as per his share, 10. In paragraph 8 of the cross-examination the said witness stated that he and other co-sharer used to give paddy of his share to Sk. Musa. PW 11 was son of Sk. Musa, who supported the statement made in plaint and claimed that his father was getting usufruct of his grant-fathers land at village Chandwe as per his share, 10. On the other hand, witnesses examined on behalf of defendants 1 and 2 deposed mostly on the point the neither Mostt. Saro Khatoon was wife of Sk. Neyamat nor Sk. Musa was his son. D. Ws. 9 and 10 in their cross-examination denied plaintiffs suggestion that Sk. Musa used to get paddy pf his share. Defendant No. 1 examined himself as DW 13 and denied Mostt. Saro Khatoon as wife of Sk. Neyamat and Sk. Musa as his son. 11. On consideration of aforesaid evidence, I am of the view that defendants failed to establish complete ouster of the plaintiffs father and grant-mother so as to acquire title by adverse possession. 12. Defendants main objection to the plaintiffs claim for partition of his Share in the suit property was that he was not at all son of Sk. Neyamat, which they miserably failed to establish in the Court below and the trial Court rightly held that Sk. Musa was son of Sk. Neyamat. 13. It is well settled that mere non-participation in the rent and profit of the land of a co-sharer does not amount to an ouster so as to given title by adverse possession. 14. In this regard reference may be made to a decision of apex Court in Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 77 . 15. In the present case it was established that original plaintiff was co- sharer of defendants, being son of Sk. Neyamat, then legal position would be that Sk. Kurban and Sk. Yunus, being co-sharers of the original plaintiff, Sk. Musa would become constructive trustees on his behalf and the plaintiffs right would be deemed to be protected by the trustees. Hence, possession of defendants over the suit land apart from being in the nature of constructive trustee, would be in law the possession of the plaintiff. 16. Kurban and Sk. Yunus, being co-sharers of the original plaintiff, Sk. Musa would become constructive trustees on his behalf and the plaintiffs right would be deemed to be protected by the trustees. Hence, possession of defendants over the suit land apart from being in the nature of constructive trustee, would be in law the possession of the plaintiff. 16. I, therefore, find and hold that there was unity of title between the parties and plaintiffs were entitled to partition their share to the extent of 1/8th plus 7/32 equal to 11/32 share in the suit land, detailed in Schedule to the plaint. 17. So far as defendants case that Sk. Heyat had pre-deceased his father, Sk. neyamat, his heirs were not entitled to any share in the suit land was concerned, no doubt issue No. 7 was framed by the trial Court on this question but was not decided for the reason that the suit failed holding that plaintiffs were not entitled to any share. In this regard DWs 3, 4 and 5 stated that Sk. Heyat died earlier to his father but they failed to state any special means of knowledge of the same and even no specific date of death of either Sk. Neyamat or Sk. Heyat was disclosed. Further in the revisional survey, which took place after death of Sk. Neyamat and Sk. Heyat, names of sons of Sk. Heyat were recorded for the lands in suit and nobody raised any objection to such entry, if sons of Sk. Heyat had no Interest therein. I, therefore, find that defendants failed to establish that Sk. Heyat had pre-deceased his father, Sk. Neyamat. 18. The impugned judgment and decree dated 16.4.1986 passed by the trial Court is, therefore, set aside and the suit is decreed and a preliminary decree to the extent of share of 11/32 of plaintiff is passed. 19. In the result, the appeal is allowed, but without costs.