JUDGMENT 1. Invoking appellate jurisdiction of this Court under section 96 of the Code of Civil Procedure, 1908 appellants have filed this appeal challenging the legality, validity, propriety and correctness of the judgment and decree dated 4.10.1997, passed by XII Additional District Judge, Jabalpur in Civil Suit No.543-A/94 decreeing respondents-plaintiffs claim to the extent of 2/9th share in the property left behind by Smt. Laxmi Devi. 2. Facts leading to the filing of this appeal in nutshell are that Mahadeo Prasad and Sharda Prasad were real brothers. Sharda Prasad had three sons namely plaintiff Ram Prasad, defendant No.4, Shiv Prasad and Jawala Prasad. Laxmi Devi was the wife of Mahadeo Prasad. Smt. Laxmi Devi purchased the suit plot and constructed house on the half portion and remaining half portion remained vacant. As the parents of plaintiff, defendant No.4 and Jwala Prasad died when they were quite young, they started living with their paternal uncle Mahadevo Prasad. Jwala Prasad was transferred to Pune but his family remained with Mahadevo Prasad. Defendant No.5 Shiv Prasad was transferred to Bhopal. Jwala Prasad continued to live in the newly constructed house of Smt. Laxmi Devi along with Mahadeo Prasad and Laxmi Devi. After retirement, plaintiff, Ram Prasad started living in a separate house at J abalpur. Defendant No.4, Shiv Prasad was also living separately. Jwala Prasad alone continued to live with Laxmi Devi. Laxmi Devi died issueless in the year 1973. Thereafter, Jwala Prasad continued to live in the suit house. Plaintiff and defendant No.4 never objected to it. 3. Plaintiff Ram Prasad filed a suit alleging that he, defendant No.4 and Jwala Prasad each have 1/3rd share in the suit property, they being the successor of deceased Laxmi Devi. It is alleged that Jwala Prasad filed a suit against Laxmi Devi and Mahadevo Prasad alleging that the suit house was purchased jointly by Mahadeo Prasad and Jwala Prasad in the name of Laxmi Devi. The suit was decreed and it was held that Laxmi Devi was the owner of only 2/3rd portion in the suit house and Jwala Prasad was the owner of 1/3rd portion. It is alleged by the plaintiff that he was not a party in Civil Suit No.97-A/69, therefore, the decree in that suit does not bind him. The suit was decreed and it was held that Laxmi Devi was the owner of only 2/3rd portion in the suit house and Jwala Prasad was the owner of 1/3rd portion. It is alleged by the plaintiff that he was not a party in Civil Suit No.97-A/69, therefore, the decree in that suit does not bind him. It was also pleaded by plaintiff Ram Prasad that under the provisions of Benami Transactions (Prohibition) Act, 1988, the property in the suit remained to be the property of Laxmi Devi. Her property devolved according to the provisions of section 15 of the Hindu Succession Act. 4. The plaintiff in the alternative also pleaded that even if it is accepted that Mahadeo Prasad, Laxmi Devi and Jwala Prasad were the joint owner of the property in dispute and each were having 1/3rd share, after the death of Mahadeo Prasad, his share devolved to Laxmi Devi and she became the owner of 2/3rd share of the property. In this 2/3rd share of the property, the plaintiff, defendant No.4 and Jwala Prasad each are having 1/3rd share. 5. The suit was opposed by the successors of Jwala Prasad. Defend -- No.4 Shiv Prasad remained ex parte. The successors of Jwala Prasad pleaded that the plaintiff was the step brother of Jwala Prasad. Mother of Jwala Prasad died in the year 1920. At that time the age of Jwala Prasad was only 3 years, thereafter, Sharda Prasad remarried. In this wedlock, plaintiff, defendant No.2 and their two sisters were born. Mahadeo Prasad realizing that Jwala Prasad is a boy without mother, took him under his protection as he himself was issueless. Mahadeo Prasad and Laxmi Devi considered Jwala Prasad as their own son. Mahadeo Prasad, Laxmi Devi and Jwala Prasad constituted a Hindu joint family but because of the misunderstanding created by plaintiff Ram Prasad and other interested persons, Smt. Laxmi Devi filed a suit against Jwala Prasad which was registered as Civil Suit No.97-A/69 and the same was dismissed on 18.10.1970. Appeal against that decree was also dismissed on 11.12.1978. 6. Successors of Jwala Prasad also pleaded that Jwala Prasad was considered to be the son of Sharda Prasad and Laxmi Devi by the society in general. Appeal against that decree was also dismissed on 11.12.1978. 6. Successors of Jwala Prasad also pleaded that Jwala Prasad was considered to be the son of Sharda Prasad and Laxmi Devi by the society in general. Laxmi Devi bestowed love and affection on Jwala Prasad like her own son and for his welfare, she used to observe fast on the occasion of Shakath and Harchhath and gave an impression to the society that Jwala Prasad is her own son. In Civil Suit No.97-A/69, it was held that Jwala Prasad was the joint owner of the suit house. He also contributed in the purchase of the suit house by selling the ornaments of his wife. In Civil Suit No.97-A/69 plaintiff Ram Prasad was called as a witness but deliberately he did not appear to give evidence. 7. The LRs of Jwala Prasad defendants No.1 to 3 further pleaded that plaintiff and defendant No.4 were asked to give their income in the fund of joint family but they refused for the same. Thereupon, Mahadeo Prasad and Laxmi Devi asked them to live separately. Accordingly, plaintiff Ram Prasad and defendant No.4 started living as the tenant of Damrilal. Defendant No.4 permanently settled in Bhopal in the year 1960. Thus, plaintiff and defendant No.4 both were ousted from the joint family and they never claimed any interest in the joint family. Mahadeo Prasad died in the year 1971 and Laxmi Devi died in the year 1973. After their death also the plaintiff and defendant No.4 did not claim any interest in the suit property. The suit house continued to remain in the possession of Jwala Prasad openly and peaceably and thus he perfected his title by adverse possession. 8. Defendants No.1 to 3 also pleaded that the suit of the plaintiff was barred by limitation as he was ousted from the joint family in the year 1955-56 and he did not file any claim after the year 1973. As the property in dispute was the joint family property of Laxmi Devi, Mahadeo Prasad and Jwala Prasad, Jwala Prasad alone become the owner of the suit property 'on the basis of survivorship. The plaintiff and defendant No.4 had no right title interest in the suit property. 9. As the property in dispute was the joint family property of Laxmi Devi, Mahadeo Prasad and Jwala Prasad, Jwala Prasad alone become the owner of the suit property 'on the basis of survivorship. The plaintiff and defendant No.4 had no right title interest in the suit property. 9. The trial Court framed as many as 8 issues and held that in view of the judgment passed in Civil Suit No.97-A/69, Laxmi Devi had 2/3rd share in the suit house. In this 2/3rd share of Laxmi Devi, Ram Prasad, Shiv Prasad and Jwala Prasad each had 1/3rd share, therefore, the plaintiff is entitled to 1/3rd share in the suit property and is entitled to get the possession of the 2/9th share after partition. 10. Initially the suit was filed against Smt. Krishna Devi, wife of Jwala Prasad, Dinesh Kumar and Awdhesh Kumar, sons of Jwala Prasad. When the wife of Jwala Prasad namely Krishna Devi died, her LRs were brought on record. The present appeal has been filed by LRs of Krishna Devi and sons of Jwala Prasad. During the pendency of this appeal respondent plaintiff Ram Prasad also died. His LRs were brought on record. 11. I have heard Shri R.S. Tiwari, counsel for the appellant and Shri S.K. Shrivastva, counsel for the respondents. 12. Learned counsel for the appellant contended that for all intends and purposes Jwala Prasad who is represented by the appellants was son of Mahadeo Prasad and Laxmi Devi, therefore, after the death of Laxmi Devi, he alone succeeded to the property of Lalxmi Devi. Though plaintiff Ram Prasad and defendant No.4 Shiv Prasad were brought up by Mahadeo Prasad but that was only an act of a benevolence towards the sons of deceased brother. Plaintiff and defendant No.4 were never the members of the joint family of Mahadeo Prasad. Sharda Prasad and Mahadeo Prasad never formed joint family. 13. As a counter to this argument, learned counsel for the respondent submitted that there is no evidence that Jwala Prasad is the son of Mahadeo Prasad and Laxmi Devi. Admittedly, he was the son of Sharda Prasad. There is no evidence that he was ever adopted by Mahadeo Prasad and Laxmi Devi. Merely because Mahadeo Prasad and Laxmi Devi showered love and affection on deceased Jwala Prasad, it cannot be claimed that he was their son. Admittedly, he was the son of Sharda Prasad. There is no evidence that he was ever adopted by Mahadeo Prasad and Laxmi Devi. Merely because Mahadeo Prasad and Laxmi Devi showered love and affection on deceased Jwala Prasad, it cannot be claimed that he was their son. Plaintiff Ram Prasad and defendant No.4 Shiv Prasad were also nephews of Laxmi Devi and she showered the same amount of love and affection on them also and for their welfare also Laxmi Devi used to observe fast on festival days of Shakath and Harehatth. 14. PW1, Ram Prasad the plaintiff has stated that at the time of the death of his father, he was aged about 5 years. Defendant No.4 was aged about 7-8 years. Jwala Prasad was elder to Shiv Prasad. All the three brothers were brought up by Mahadeo Prasad and Laxmi Devi. After the death of Laxmi Devi, the defendant No.4 and Jwala Prasad each got 1/3rd share in the property as her successors. 15. DW1, Dinesh Kumar has stated that Mahadeo Prasad also known as Swami Saheb and Laxmi Devi treated his father Jwala Prasad as their own son. Laxmi Devi used to observe fasts for the welfare of Jwala Prasad as a mother observes for her son. Mahadeo Prasad brought up plaintiff and defendant No.4 also but as they refused to give their salary to Menhaden Prasad, they were ousted from the family. After the year 1956 plaintiff Ram Prasad never lived with Laxmi Devi. He also stated that a litigation took place between her father and Laxmi Devi. In the judgment of this case Jwala Prasad was adjudged to be the co-owner of the suit house. The plaintiff expressed his desire to live with Laxmi Devi but Laxmi Devi refused for the same. After the death of Laxmi Devi, the plaintiff requested his father to give share in the suit house and he also asked to give him the rents but Jwala Prasad refused to give any share and the tenants also refused to give him the rent. 16. Maruti, DW2 has also stated that Mahadeo Prasad was issueless. Mahadeo Prasad treated Jwala Prasad as his own son. Jwala Prasad alone performed the last rights of Mahadeo Prasad. The last rites of Laxmi Devi also were performed by Jwala Prasad. He was the tenant in the house of Mahadeo Prasad. 16. Maruti, DW2 has also stated that Mahadeo Prasad was issueless. Mahadeo Prasad treated Jwala Prasad as his own son. Jwala Prasad alone performed the last rights of Mahadeo Prasad. The last rites of Laxmi Devi also were performed by Jwala Prasad. He was the tenant in the house of Mahadeo Prasad. He used to pay the rent to Jwala Prasad treating him to be the owner of the suit house. 17. Kasturi Lal, DW 4 and Rukmani Oevi examined on behalf of the defendants have also stated that Mahadeo Prasad and Laxmi Devi used to treat Jwala Prasad as their own son. Jwala Prasad was the nephew of Mahadeo Prasad and Laxmi Devi. 18. Admittedly, Jwala Prasad was the son of Sharda Prasad and real brother of plaintiff Ram Prasad and defendant No.4 Shiv Prasad, he was not the son of Mahadeo Prasad and Laxmi Devi. Merely, because Mahadeo Prasad and Laxmi Devi showered love on him and the last rites of Mahadeo Prasad and Laxmi Devi were performed by Jwala Prasad being eldest nephew, he did not become their son. There is neither pleading nor any evidence to the effect that Jwala Prasad was adopted by Mahadeo Prasad and Laxmi Devi. In the absence of adoption Jwala Prasad cannot become the son of Mahadeo Prasad and Laxmi Devi. 19. It is true that property was purchased in the name of Laxmi Devi, therefore, the transaction was Benami but before coming into force of Benami Transaction (Prohibition) Act, 1988 in CS No.73-A/69 it was decided that Jwala Prasad was the co-owner of the suit house along with Laxmi Devi. The provisions of section 3 of the Prohibition Act are not retrospective. It is true that present appellant was not a party in CS No.73-A/69 but that was a suit filed by Laxmi Devi against Jwala Prasad alone Present plaintiff was not a necessary party. In terms of the decree passed in CS No.73-A/69, Jwala Prasad was held to be the co-owner to the extent of 1/3rd share in the suit property. Laxmi Devi was the owner of only 2/3rd share of the suit house. Her interest in this 2/3rd share devolved upon Jwala Prasad, Ram Prasad and Shiv Prasad, they being the nephews and heirs of deceased Laxmi Devi. 2/3rd share of Laxmi Devi in the property devolved upon these three persons in equal share. Laxmi Devi was the owner of only 2/3rd share of the suit house. Her interest in this 2/3rd share devolved upon Jwala Prasad, Ram Prasad and Shiv Prasad, they being the nephews and heirs of deceased Laxmi Devi. 2/3rd share of Laxmi Devi in the property devolved upon these three persons in equal share. The trial Court has also recorded a finding that Jwala Prasad was the joint owner in the suit property song with Laxmi Devi and her husband. After the death of her husband, his 1/3rd share devolved in her and she became the owner of 2/3rd share. No appeal against the judgment of the trial Court has been filed by the plaintiff nor the finding of the trial Court in this regard has been challenged by way of cross objection. 20. The another limb of the argument of learned counsel for the appellant is that the suit filed by the plaintiff was barred by limitation. 21. The contention cannot be accepted. A co-owner of the property can file the suit for partition at any time. The counsel for the appellant could not show as to when the period of limitation started against the plaintiff, therefore, this contention also is not acceptable. 22. Learned counsel for the appellant lastly drew the attention of this Court that Jwala Prasad and his successors perfected their title by adverse possession. During the life time of Laxmi Devi and after her death Jwala Prasad and his successors continued to be in the exclusive possession of the suit property. 23. Merely because the plaintiff was living in a separate house, it cannot be said that the possession of Jwala Prasad was adverse. The doctrine that the possession of one co-owner is prima facie not adverse to the other co-owner is applicable to the heirs also. A suit by a heir for recovery of his share from other heirs, who all hold the estate as tenants in common, is governed by Article 65 of the Limitation Act. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner he has to plead and establish all the necessary facts to establish his adverse possession. 24. The expression 'adverse possession' means a hostile possession, i.e. a possession which is expressly implied in denial of the title of the true owner. Since he is trying to defeat the rights of the true owner he has to plead and establish all the necessary facts to establish his adverse possession. 24. The expression 'adverse possession' means a hostile possession, i.e. a possession which is expressly implied in denial of the title of the true owner. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession, unless it is accompanied by adverse animus. The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 25. The defendants could not give a satisfactory evidence regarding ouster and established assertions of exclusive title and denial of title of the plaintiff. Mere exclusive possession of Jwala Prasad and his successors would not amount to ouster of others so as to extinguish their title by alleged adverse possession. It is true that the property was mutated in the name of Jwala Prasad but that alone will not establish that Jwala Prasad was in exclusive possession to the ouster of others. 26. The principle of adverse possession is derived from the classical requirement that in order to give a title by adverse possession, the possession must be nec vi, nec clam, nec procario, i.e., peaceful, open and continuous. Where the plaintiff went on asking for the possessed asserting his title, it cannot be said that Jwala Prasad or his successors perfected their title by adverse possession. Merely because the physical possession of the plaintiff discontinued, it cannot be said that he was dispossessed after the death of Laxmi Devi. The difference between dispossession and the discontinuance of possession might be expressed in this way the one is where a person comes in and drives out the others from possession the other case is where the person in possession goes out and is followed into possession by other persons. Voluntarily and amicably giving up of possession is not dispossession. Therefore, it cannot be said that plaintiff was dispossessed by Jwala Prasad and his successors and they were in the exclusive possession of the suit house to the ouster of the plaintiff and the finding of the trial Court in this regard is unimpeachable. 27. Voluntarily and amicably giving up of possession is not dispossession. Therefore, it cannot be said that plaintiff was dispossessed by Jwala Prasad and his successors and they were in the exclusive possession of the suit house to the ouster of the plaintiff and the finding of the trial Court in this regard is unimpeachable. 27. In view of my preceding analysis, the judgment and decree of the trial Court is defensible. I do not find any merit in this appeal and the same is therefore, dismissed. Costs as incurred.