P. S. NARAYANA, J. ( 1 ) JUDGMENT :defendants 1, 3, 4 and 5 in O. S. No. 71/88 on the file of the principal Subordinate Judge, Kurnool are the appellants. Respondents 1 to 3 in this appeal are the plaintiffs in the said suit and 4th respondent is the 2nd defendant in the said suit. The aforesaid suit was instituted by the plaintiffs praying for the relief of partition and separate possession of their respective shares in the plaint schedule properties and also for past and future profits. ( 2 ) FOR the purpose of convenience, the parties will be referred to as "plaintiffs" and "defendants". ( 3 ) THE learned Principal Subordinate judge. Kurnool on the strength of the respective pleadings of the parties and after settling the relevant Issues, had recorded the evidence of PW-1 to PW-5 and DW-1 to dw-3 and marked Exs. A-1 to A-4 and exs. B-1 to B-19 and had ultimately dismissed the suit and aggrieved by the said judgment and decree made in O. S. No. 71/88 on the file of Principal Subordinate Judge, Kurnool, the plaintiffs had preferred A. S. No. 43/90 on the file of I Additional District Judge, kurnool and the learned Judge on appreciation of the respective contentions of the parties after framing the necessary Points for consideration had arrived at the conclusion that the plaintiffs are bound to succeed so far as their shares in Items 1 and 6 of the plaint schedule properties are concerned and had confirmed the judgment of the Court of first instance in other respects. As already stated supra, the defendants 1, 3 to 5 aggrieved by the said judgment and decree had preferred the present Second appeal impleading the 2nd defendant as 5th respondent in the Appeal apart from the plaintiffs in the suit. ( 4 ) SRI Parameswara Rao, the learned counsel representing Sri Rangappa, the learned Counsel representing the appellants had drawn my attention to Ground No. 18 (a) to (d) of the Memorandum of Grounds of Appeal and had submitted that these questions are the substantial questions of law which fall for consideration in this second Appeal. The learned Counsel had further maintained that as far as other items are concerned, the judgment and decree became final as no Appeal had been preferred by the plaintiffs in this regard. The learned Counsel had further maintained that as far as other items are concerned, the judgment and decree became final as no Appeal had been preferred by the plaintiffs in this regard. The learned Counsel also had further maintained that the appellate Court had totally erred in reversing the well considered judgment of the Trial Court in relation to certain items. The learned Counsel also had pointed out the clear findings recorded by the Trial Court especially in the light of the notice Ex. A-1 and contents thereof and had contended that the plaintiffs having kept quiet for a long time cannot approach the court seeking the relief of partition and at any rate in view of the facts and circumstances of the case, there is clear ouster and hence the parties cannot claim the relief of partition after such a long lapse of time which is now barred by limitation and also because of the fact that the 1st defendant had perfected his title by adverse possession by passage of time. The learned Counsel also had placed reliance on P. Lakshmi Reddy v. L. Laxmi reddy, AIR 1957 SC 314 , V. Sooppi v. N. Moossa, AIR 1969 Kerala 222, and Abubakar abdul Inamdar v. Harun Abdul Inamdar, air 1996 SC 112 . ( 5 ) SRI Laxminarayana Reddy, representing Sri Somakonda Reddy, the learned Counsel representing the respondents 1 to 3 in the Appeal-plaintiffs in the suit, had submitted that the Trial Court was unable to appreciate the principles of law relating to adverse possession vis-a-vis the co-sharers or co-heirs under the Mohammadan Law. The learned Counsel also had further contended that inasmuch as there is clear proof of ouster, the possession of a co-sharer should be deemed to be permissive possession and can never become adverse and even otherwise the burden of proof always is on the party asserting the claim of title to the property by way of adverse possession. The learned Counsel also had further contended that as far as items 1 and 6 are concerned, the appellate Court had recorded clear and categorical findings and inasmuch as the plea of oral gift set up by the 1st defendant had been disbelieved by both the Courts below, the appellate court was well justified in allowing the appeal partly so far as it relates to items 1 and 6 of the plaint schedule properties. The learned Counsel also further contended that the mere fact that a co-heir had not received the profits, by itself cannot be such a strong circumstance so as to establish the alleged ouster. The learned Counsel had placed strong reliance on Darshan Singh and others v. Gujjar Singh (Died) By L. Rs. and others, (2002) 2 SCC 62 , Mohd. Ismail v. Khadirsa Rowther, AIR 1983 Madras 123, mohd. Ibrahim v. Syed Md. Abbubakker, air 1976 Madras 84, Ibramsa v. Sk. Meerasa, AIR 1972 Madras 467, and also Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 77 . ( 6 ) HEARD both the Counsel. ( 7 ) THE factual matrix relating to the present controversy as revealed in the respective pleadings can be narrated as hereunder, in short: ( 8 ) THE three plaintiffs and the 2nd defendant in the suit are the four daughters of late Syed Abbas Mia who died about 40 years ago prior to the institution of the suit and the 3rd defendant is his widow and the 1st defendant is the only son and 4th defendant is the son of the 1st defendant and the 5th defendant is the wife of the 4th defendant. Evidently, defendants 4 and 5 were impleaded as parties inasmuch as a suit for partition was instituted in relation to several items but however relief was granted by the appellate court in relation to items 1 and 6 only. The said Syed Abbas Mia had expired about 40 years prior to the institution of the suit leaving behind him his only minor son at the relevant time - the 1st defendant, the widow and the four daughters. It was also pleaded that he had left items 1 and 6 and some cash also and in view of the close relationship between the parties the plaintiffs never demanded separation of their respective shares. But unfortunately the 1st defendant not only failed to render proper accounts relating to the income derived by him from the estate but had managed to acquire items 2, 5 and 7 to 9 in his own name and item 3 in the name of the 4th defendant and item 4 in the name of the 5th defendant and in such circumstances it was stated that the suit for the relief of partition is instituted. ( 9 ) THE 1st defendant filed the written statement which was adopted by defendants 2 to 5 and the allegations, in brief, are as follows: ( 10 ) IT is false to say that the deceased syed Abbas Mia left behind items 1 and 6 with pucca house standing in item No. 6 premises and a fat sum of Rs. 1 0,000/- besides gold and silver ornaments as alleged by the plaintiffs as the deceased was a poor man at the time of his death. It was also false to state that the extent of item 1 is six acres as it actually admeasures ac. 5-02 cents. It is a barren land of low fertility. The income yielded therefrom was hardly sufficient for the sustenance of the large family of the deceased Syed abbas Mia. It was also false to say that the 1st defendant acquired items 2 to 5 and 7 to 9 using the estate of the deceased Syed abbas Mia as a nucleus. The 1st defendant had been working as a carpenter and with his surplus earnings he purchased items 2 to 5 and 7 to 9 of the plaint schedule besides constructing a pucca house in item 6 investing Rs. 30,000/- after demolishing the hut which used to exist thereon at the time of the death of his father. The defendants further pleaded that the 4th defendant had been running a Kirana shop and with the income yielded from the business, which constituted his own earnings, he purchased item No. 3. With the money and the gold ornaments given by her parents the 5th defendant purchased item No. 4. It was further pleaded that the plaintiffs had laid this suit with false allegations and with the sole idea of causing harassment to the 4th defendant as he happened to give divorce to his first wife who is the daughter of the 3rd plaintiff on account of incompatibility between the spouses. The defendants further pleaded that shortly prior to the demise, the deceased Syed Abbas Mia conveyed items 1 and 6 to the 1st defendant by way of oral gift and that at any rate the 1st defendant perfected his title to items 1 and 6 by his adverse possession for a period of more than 40 years and so the plaintiffs could not claim any share in any one of the plaint schedule properties. ( 11 ) ON the respective pleadings of the parties, the learned Subordinate Judge had settled the following Issues and additional issue. 1. Whether the late Abbas Mia owned items 1 and 6 alone and whether he conveyed the same by oral gift to D-1 ?2. Whether items 2, 5 and 7 to 9 are the self-acquired properties of D-l and whether they were not purchased with the income from items 1 and 6 ?3. Whether the house in item No. 6 was constructed by D-1 by spending about rs. 30,000/- after demolishing the old kottam which used to exist therein ?4. Whether item No. 3 was purchased by d-4 with his own earnings ?5. Whether item No. 4 was purchased by d-5 with her own earnings?6. Whether the suit properties were wrongly described in the plaint schedule in respect of their respective extents and boundaries ?7. Whether the plaintiffs are entitled for partition and if so, what properties are to be divided ? additional Issue ( 12 ) WHETHER the 1st defendant perfected his title to items 1 and 6 of the plaint schedule by adverse possession ? ( 13 ) AS already referred to supra, the suit was dismissed by the Trial Court and aggrieved by the same, the Appeal referred to supra had been preferred and the appellate court had framed three Points for consideration and while answering Point no. 3, had arrived at the conclusion that the plaintiffs are entitled to their respective shares in items 1 and 6 of the plaint schedule properties. ( 14 ) AS can be seen from the material available on record, the only substantial question of law which arises for consideration is : whether the 1st defendant has perfected his title by adverse possession in the facts and circumstances of the case on the ground of ouster ? ( 15 ) THE facts in nut-shell had been narrated in short supra, and they need not be repeated again. As far as the other factual aspects are concerned, both the Courts had appreciated the evidence of PW-1 to PW-5, dw-1 to DW-3 and also Ex. A-1 to Ex. A-4 and Ex. B-1 to Ex. B-19 and had recorded the findings. No doubt, there is some controversy relating to the description of the properties and the boundaries relating thereto. As far as the other factual aspects are concerned, both the Courts had appreciated the evidence of PW-1 to PW-5, dw-1 to DW-3 and also Ex. A-1 to Ex. A-4 and Ex. B-1 to Ex. B-19 and had recorded the findings. No doubt, there is some controversy relating to the description of the properties and the boundaries relating thereto. A finding had been recorded by both the Courts below that Syed Abbas Mia had left behind him items 1 and 6 of the plaint schedule properties and even the court of first instance had disbelieved the oral gift which was set up by the 1st defendant. Further, findings also had been recorded relating to the acquisition of other items of the plaint schedule properties and as already observed by me, as against the negativing of the relief in relation to the other items, no Appeal had been preferred by the plaintiffs and hence the judgment and decree in relation to those items became final. Hence, the only question that remains to be considered in the present Second Appeal is whether the judgment and decree in relation to items 1 and 6 as granted by the appellate Court are liable to be interfered with in this Second appeal ? ( 16 ) THE main grievance of the appellants in general, and the 1st appellant in particular, appears to be that the plaintiffs having kept quiet for sufficiently long time, are now claiming the relief of partition and by virtue of non-participation or non- enjoyment of the profits for sufficiently a long time ouster of the co-heirs can be inferred from the facts and circumstances and hence the appellate Court should have negatived the relief even in relation to items 1 and 6 of the plaint schedule. In Sahul hamid v. Sulthan, AIR 1947 Mad. 287, it was observed:". . . THE Mohammadan Law does not recognize joint family as a legal entity. In fact, according to the rules of Mohammadan law of succession, heirship does not necessarily go with membership of the family. There are several males and females who have no interest in the heritage but may be members of the family. On the other hand there are several heirs like, for example, married daughters of a deceased male owner who take an interest in the estate but form no part of the family". In the decision referred in Mohd. There are several males and females who have no interest in the heritage but may be members of the family. On the other hand there are several heirs like, for example, married daughters of a deceased male owner who take an interest in the estate but form no part of the family". In the decision referred in Mohd. Ibrahim case (supra), the Madras High Court held as follows:"the personal law of Muslims does not recognise a system of joint holding as is common amongst Hindus. There may be cases, however, where a custom may be set up in the matter of the holding of such properties by some of the members of a muslim family whereby it could be established that such possession and title in some of the members is customarily to be interpreted and understood as possession on behalf of all the members. Acquisition of property independently by a member cannot automatically be said to be for the benefit of the family. If there is conclusive evidence that a member of the muslim family, who acquired such properties gained an advantage to himself and caused prejudice to others and if such acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased, then matters would be different. Again it is also necessary to prove that the members were living jointly and enjoying the property jointly and in common". In the decision referred in Karbalai begum case (supra), it was held by the Apex court :"it is well settled that mere non-participation in the rent and profits of the land of a co- sharer does not amount to an ouster so as to give title by adverse possession to the said co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees". Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees". ( 17 ) IN my Law of Adverse Possession, 4th Edition, at page 408, while dealing with this aspect, I had stated:"in a case between Mohammadan co-owners although there was no actual participation of the profits as a co-sharer by the plaintiff, as heir to her mother, the claim was not barred although the property was actually held and managed by her brother because the plaintiff, while she was living in the house of the jote, she was being supported out of the profits of the property. . . . "in the decision referred in Darshan Singh case (supra), it was held by the Apex Court that the possession of a co-sharer becomes adverse to the other co-sharers only if there is a clear ouster and denial of their title. ( 18 ) NO doubt, a serious attempt was made in the present case by the Counsel representing the appellants to show that even in Ex. A-1 notice several admissions had been made relating to the non-enjoyment of the profits and by this the plea of ouster can be taken as established. I am not inclined to accept with the said contention. While appreciating the question of possession and enjoyment of the properties by co-owners, co-sharers or co-heirs, the Courts are expected to adopt a very cautious approach for the reason that normally in many such cases a particular co- owner or co-sharer or co-heir will be in management of the affairs of the properties and normally it should be taken that the possession of one co-owner or co- sharer or co-heir is that of all the others having interest in the said property unless there is a clear proof of ouster or a specific denial of title resulting in perfection of title by one of the co-owners as against all the others by adverse possession. In the decision referred in P. Lakshmi Reddy case (supra), while dealing with the aspect of adverse possession of one co-heir as against another, it was held by the Apex Court as follows:". . . . . In the decision referred in P. Lakshmi Reddy case (supra), while dealing with the aspect of adverse possession of one co-heir as against another, it was held by the Apex Court as follows:". . . . . BUT it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one ouf of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. 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-heirs title. It is a settled rule of law that 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 constitute ouster". In the decision referred in V. Sooppi case (supra), no doubt it was held that when one co-owner had taken possession and continues in possession for a long time, enjoying the income of the property without sharing it with the other co-owners, it is a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this Courts will be justified in inferring ouster or exclusion. In the decision referred in Ibramsa case (supra), while dealing with the aspect of distinction between adverse possession as between strangers and ouster and exclusion of co-owners, the Division Bench of Madras high Court had observed:"there is a distinction between adverse possession as between strangers and ouster and exclusion of co-owners. In the case of adverse possession as against strangers, it is sufficient that adverse possession is overt and without any attempt at concealment. It is not necessary that adverse possession should be brought home to the knowledge of the owner. In the case of adverse possession as against strangers, it is sufficient that adverse possession is overt and without any attempt at concealment. It is not necessary that adverse possession should be brought home to the knowledge of the owner. When the adverse possession is open, visible and notorious, if the owner remains ignorant and indifferent he cannot complain. In the case of ouster of a co- owner the position is different. To constitute ouster law requires something than mere exclusive possession and exclusive receipt of income. There must also be an ouster a hostile, open denial and an open repudiation of that co-owner s right to the latter s knowledge. But this does not mean that the co-owner who has been ousted or excluded should be expressly informed as such by the other co-owner. If other circumstances concur the Courts can legitimately infer from exclusive possession for a considerable length of time, that the other co-owner has been excluded to his knowledge. The theory of lost grant is applicable to support long continued possession for considerable length of time. If the co-owner does not assert his right for a considerable length of time, the inactive co-owner must take the consequences, for long delay in bringing a suit to establish his right, which delay has prejudiced the other side and occasioned loss of evidence by lapse of time". In Karunai Ammal v Karuppa Gounder, 1980 (1) MLJ 432, it was observed that in case of a co-owner, mere possession however long it might be, could not constitute adverse possession and equally mere non- participation in the income would not lead to automatic conclusion of ouster and possession must be over the statutory period and there must be a clear ouster to the knowledge of the co-owner or co-heir against whom adverse possession is pleaded. In the decision referred in Mohd. Ismail case (supra), it was held by the Madras High court as follows:"where some of the co-owners who were in possession of family property, effected the partition of it among themselves by means of a registered deed, and the other co- sharers were not aware of this partition and came to know of it when they were denied their share of income in the property and were also not aware of other alienations made by the co-owners in possession, the co-sharers in possession could not claim title by adverse possession. In such a case, mere non-participation in income of property would not constitute ouster of the co-sharers who were not in possession of the property". ( 19 ) IT is essential to note that the concept of ouster is a positive one and hostile animus is essential to constitute such ouster and the mere inaction on the part of one co-owner or co-sharer or co-heir by itself cannot be taken as ouster unless animus is established. Here, it may be pointed out as already observed by me, the courts are expected to be very cautious while deciding the aspect of either the plea of adverse possession or the aspect of ouster in the case of co-owners in general and especially in the case of co-heirs who will be very close relatives, in particular. As can be seen from the material available on record, in view of the close relationship of the parties, inasmuch as all was well, may be that the plaintiffs were not very particular of demanding the 1st defendant for their share of the income. It is pertinent to note that the specific stand taken by the 1st defendant relating to the oral gift had been negatived and normally in such a case the possession of the 1st defendant should be taken as possession representing all the other co-heirs relating to the estate of the deceased Syed Abbas Mia and at any rate it cannot be said to be adverse to the plaintiffs - the co-heirs, unless there is clear proof of total exclusion which may amount to ouster so as to negative the claim of such co-heirs on the plea of adverse possession. As can be seen from the findings recorded except stating that inasmuch as some demand was made relating to the accounts and non-payment of profits in ex. A-1 notice there is no other material placed before the Courts, so as to arrive at a conclusion that all the necessary ingredients, either to sustain the plea of adverse possession or the plea of ouster, had been established and proved in the present case. A-1 notice there is no other material placed before the Courts, so as to arrive at a conclusion that all the necessary ingredients, either to sustain the plea of adverse possession or the plea of ouster, had been established and proved in the present case. Apart from this aspect, on the facts available on record it is inferable that the 1st defendant had continued to be in possession of items 1 and 6 by way of permissive possession inasmuch in view of the close relationship between the parties the plaintiffs have not raised such a demand earlier and this affectionate conduct on the part of such co-heirs by itself can never be taken as either adverse possession or ouster so as to totally negative the claim of relief of partition of the plaintiffs. On a careful reading of the judgment of the appellate Court, I am of the considered opinion that the appellate Court had appreciated both the questions of fact and the questions of law involved in the matter and had rightly arrived at the conclusion that as far as the estate left by the deceased Syed Abbas Mia is concerned, the plaintiffs in the suit also are entitled to their respective shares and these are all findings recorded on appreciation of both the oral and documentary evidence in detail, i. e. , the evidence of PW-1 to PW-5 and dw-1 to DW-3 and Exs. A-1 to A-4 and exs. B-1 to B-19, which need not be repeated again in detail in the present Second appeal. Suffice for me to say that the findings recorded by the appellate Court relating to the plea of adverse possession and also the question of ouster in the case of co-heirs in general and the co-heirs governed by Mohammadan Law in particular, do not suffer from any illegality so as to warrant interference in this Second appeal. ( 20 ) ACCORDINGLY, the Second Appeal is bound to fail and the same is dismissed. In view of the close relationship between the parties, this Court makes no order as to costs.