JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Ms. Tulika Prakash, learned counsel for the defendants/appellants and Sri V.B. Khare, learned counsel for the plaintiff/respondents. 2. The second appeal arises out of the original suit No. 324 of 1972 instituted by the plaintiff/respondent claiming 2/3rd share in Haveli and Ahata in village Muqimpur, Pargana Baran, District Bulandshahar. The suit was dismissed with cost by the Civil Judge, Bulandshahar, vide judgment and order dated 25.1.1975. Against which the plaintiff preferred a civil appeal No. 80 of 1975. The appeal was allowed and the suit was decreed by 1st Additional District and Sessions Judge, Bulandshahar, vide judgment and decree dated 18.11.1977. 3. The instant appeal was admitted on the following substantial questions of law, which are quoted hereinbelow : (1) Whether the lower appellate Court having recorded a categorical finding on the basis of all oral and documentary evidence on record to the effect that the defendant-appellant was in sole possession of the property in suit to the exclusion of the plaintiff-respondent since 8.5.1958 it has grossly-erred in holding on the basis of mere presumptions that the possession must be deemed to have been interrupted during the pendency of the earlier proceedings under Section 145, Code of Criminal Procedure? (2) Whether there being a categorical evidence to the effect that in spite of the order of attachment passed in the aforesaid proceedings under Section 145, Cr.P.C. the defendant-appellants actually continued to retain possession, the lower appellate Court has grossly erred that during that period his possession must be deemed to have been interrupted? (3) Whether the lower appellate Court has grossly erred in basing his conclusions upon the inferences drawn out of earlier criminal proceedings between the parties to the present suit and not upon the evidence produced in the case which was actually before him.” 4. Admitted case between the parties is that the plaintiff-respondent is widow of late Rai Bahadur Karan Singh and step mother of the defendant-appellant No. 1 Rajendra Singh and other defendants are sons of the defendant No. 1. Basis of the plaintiffs claim was that late Rai Bahadur Karan Singh, who was the owner of Haveli and Ahata transferred both in favour of his second wife (step mother of defendant No. 1) by means of the registered Will dated 4.5.1957 and thereafter he died in the month of January, 1958. Basis of the plaintiffs claim was that late Rai Bahadur Karan Singh, who was the owner of Haveli and Ahata transferred both in favour of his second wife (step mother of defendant No. 1) by means of the registered Will dated 4.5.1957 and thereafter he died in the month of January, 1958. The plaintiff got ownership and possession over the property in suit. 5. The defendant Nos. 1 to 3 instituted an original suit No. 1 of 1960 claiming declaration in their favour in respect of the disputed property. The defendant No. 4 in the present suit was impleaded as proforma defendant No. 5. The suit was decreed in part and declaration was given that the present defendant-appellants had 1/3 share only while the plaintiff was entitled to 2/3 share in the Haveli and Ahata. The Will dated 4.5.1957 was held to be valid. Against the judgment in original suit No. l of 1960, an appeal was preferred, which was dismissed on 10.8.1065. The plaintiff set up the case in the present suit that they were in joint possession but she was unable to enjoy her share and this was the cause of action of institution of original suit No. 324 of 1972. 6. The defendant-appellants contested the suit, denied title and possession of the plaintiff and pleaded that the widow was forcibly evicted and dispossessed on 8.5.1958. After the death of Rai Bahadur Karan Singh, proceedings under Section 145, Cr.P.C. was instituted, which was decided in her favour but it is also admitted that she could not obtain possession on the basis of the order passed in the proceedings under Section 145, Cr.P.C. 7. A number of issues were framed but the main controversy revolves around the question as to whether the defendant No. 1 Rajendra Singh had perfected his title by adverse possession over the suit property. Issue No. 5 relates to the question as to whether claim of the plaintiff is barred under Section 4 of Partition Act. Issue Nos. 1, 2, 3 and 4 which relates to the questions of adverse possession, were decided in favour of the appellants. The fact that original suit No. 1 of 1960 was decreed in favour of the defendant/appellants only to the extent of 1/3 share but finding of the trial Court was in favour of the defendants on the question of adverse possession. The fact that original suit No. 1 of 1960 was decreed in favour of the defendant/appellants only to the extent of 1/3 share but finding of the trial Court was in favour of the defendants on the question of adverse possession. ‘Will’ in favour of the plaintiff thus held to be valid, therefore, only question that remains to be decided in the instant appeal is question of adverse possession. 8. I have perused the two judgments and documents on record of the Court below. It is evident that Smt. Gir Raj Kunwar, the plaintiff admitted that she was evicted from Haveli and Ahata by her step son Rajendra Singh and thereafter she had initiated proceedings under Section 145, Cr.P.C. after her dispossession. The learned S.D.M. held her to be in possession of the property in dispute two months prior to initiation of the proceedings under Section 145, Cr.P.C. but it is also admitted that she could never obtain possession and thereafter no other suit or proceedings for eviction was initiated. 9. Finding of the trial Court is that she was forcibly evicted on 8.5.1958 and the suit for partition of the property was instituted in the year 1972. Thus the date of her dispossession stands confirmed and cannot be questioned or looked into in the second appeal. 10. I have also perused oral statement of P.W. 1 Narain Singh son of Har Narain Singh of the same village, who did not disclose anything regarding actual physical possession of the plaintiff over the property in dispute after 8.5.1958. Supurdagar, in whose Supurdagi, the property is alleged to have been given during the period of attachment in the proceeding under Section 145, Cr.P.C., has also admitted and conceded that during the period of Supurdagi, it was defendant No. 1 Rajendra Singh, who was in actual physical possession of the disputed property. 11. The plaintiff Gir Raj Kunwar had not entered the witness box to refute the date specifically proved by the defendants. The trial Court was correct in its approach while drawing adverse inference on account of failure on the part of the plaintiff to enter the witness box. Exhibit-A1 is an application given to the Superintendent of Police, Bulandshahar, regarding her eviction from the property in dispute and the only person who could give a specific denial regarding the said application was plaintiff herself. Exhibit-A1 is an application given to the Superintendent of Police, Bulandshahar, regarding her eviction from the property in dispute and the only person who could give a specific denial regarding the said application was plaintiff herself. The trial Court has also taken into consideration the testimony of DW-1 Rajendra Singh, DW-2 Leela Singh who have corroborated that proceeding under Section 448 read with Section 109, I.P.C. was initiated on complaint filed by the Magistrate 1st Class, regarding failure of the defendants to deliver possession pursuant to the final order passed under Section 145, Cr.P.C. 12. The trial Court while dismissing the suit placed reliance on the decision in the case of Narain Patil v. Puttaba, AIR 1945 PC 5 wherein it was held that if a party fails to bring its action within time is not entitled to exclude the time while computing the length of period of hostile possession on the basis of pending case. A mere order for possession without actual delivery of possession is not sufficient to cut short the period of continuous occupancy by the person who claims title on the ground of adverse possession. 13. The lower appellate Court however, proceeded to decide solitary question for determination in the appeal as to whether the defendants remained in continuous possession adverse to the plaintiff for a period of 12 years since before institution of suit in respect of 2/3 share claimed by the plaintiff. Only question that was decided by the lower appellate Court is whether the possession of the defendant-appellants to the extent of 2/3 share was actual, continuous, within the knowledge of plaintiff and adversely held for the period of 12 years. The lower appellate Court reversed the findings of the trial Court on the principles that since the plaintiff-appellant is co-sharer, ouster of the co-sharer from the actual physical possession is not sufficient for grant of right of adverse possession. The lower appellate Court has placed reliance on the decision of the Apex Court in the case of Shambhu Prasad Singh v. Most. Phool Kumari and others, AIR 1971 SC 1337 , wherein it was held that as between the co-sharers the possession of one co-sharer in law is possession of all co-sharers, therefore, continuous non-possession of other co-sharers will not bestow a title on the ground of adverse possession. Phool Kumari and others, AIR 1971 SC 1337 , wherein it was held that as between the co-sharers the possession of one co-sharer in law is possession of all co-sharers, therefore, continuous non-possession of other co-sharers will not bestow a title on the ground of adverse possession. The lower appellate Court has accepted the findings of the trial Court so far Exhibit-A1 which was certified copy of the application sent by the plaintiff to the Superintendent of Police, Bulandshahar. Though there is no endorsement of the date in the application but other averment clearly suggests that it was made on or before 8.5.1958. Thus, it is clear that the two Courts have categorically come to a conclusion that the plaintiff was ousted from actual physical possession from her 2/3rd share on or before 8.5.1958. The Exhibit A1, certified copy was obtained from the Court of Magistrate 1st Class, Bulandshahar, where the original was filed, therefore, it was admissible in evidence and no question was raised regarding its admissibility on behalf of the plaintiff. 14. On perusal of the application, it transpires that in absence of plaintiff, Rajendra Singh broke open lock of the Haveli and Ahata and took possession and they trespassed in her property. Thus, the concurrent findings of the two Courts that the defendant-appellants were forcibly in exclusive possession of the disputed property, is a finding of fact and has to be accepted as fact proved on the basis of cogent evidence. The lower appellate Court also confirmed findings that from the documentary and oral evidence adduced on behalf of the defendants, it is proved and established that they continued to remain in possession over the property in suit even though it was attached in the proceeding under Section 145, Cr.P.C. Leela Singh who was appointed as Supurdgar, has also unequivocally admitted in his testimony before the Court below. The plaintiff, for the reason best known did not examine herself and, therefore, the lower appellate Court has allowed the appeal only because original suit No. 1 of 1960 was decided in favour of the plaintiff and declaration was given upholding the validity of the ‘Will’ and also her claim of 2/3rd share in the property, therefore, it would amount to disrupting continuous possession over the property in dispute. The lower appellate Court failed to take into consideration that the suit No. 1 of 1960 was instituted by the defendants challenging the Will. There was no counter claim set up for possession and the Will was held to be valid. This is not disputed by the defendants, on the contrary, it is admitted that on the basis of Will as well as having lost the suit instituted by the defendant-appellants for declaration that Will was invalid, the claim of the plaintiff to the extent of 2/3 share is established. 15. The plaintiff instituted suit only in the year 1972 claiming relief of partition of the property and consequent to such partition to re-enter in her share of Haveli and Ahata. The lower appellate Court lost sight of the fact that this aspect was not disputed by the defendants but they set up a claim on the basis of being in uninterrupted possession within the knowledge of the plaintiff for more than the period of 12 years and thereby perfected their rights in respect of 2/3 share as well given to her on the basis of Will. 16. Reliance has been placed by the counsel for the appellants on the decision; Kailash Singh and others v. Mahabir Pandey, 1973 Cr. L.J. 1667, wherein it was held that an order restraining the parties from going to the land in dispute during the period of attachment in the proceeding under Section 145, Cr.P.C., if there is nothing to establish that attachment was served or acted upon, the property can not be said to be in custodia legis. The next decision relied upon by the counsel for the appellants is, Mohd. Zainulabudeen (since deceased) by L.Rs. v. Sayed Ahmed Mohideen and others, AIR 1990 SC 507 , wherein it was held that : “It is well settled that where one-co-heir pleads adverse possession against another co-heir then it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law, as possession of all the co-heirs. 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-heir’s title. The possession of one co-heir is considered in law, as possession of all the co-heirs. 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-heir’s title. Thus it is a settled rule of law 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 construe ouster.” 17. To counter the aforesaid arguments, the counsel for the respondents has placed reliance on the following decisions; Mst.Wazir Khanam and others v. Deputy Director of Consolidatoin, Meerut and others, 1975 AWC 481, wherein the High Court held that proceedings of criminal Court for the period during which the disputed property remained under attachment would in law be in possession of the true owner. In fact this decision has no bearing to the facts of the present case as it was only in a case where proceeding under Sections 145 and 146, Cr.P.C. was challenged. No question arose regarding consequences or claim on the basis of adverse possession. Facts of the present case are entirely different. Admittedly, the property in question though was attached but it cannot be said that it was in custodia legis as the order of attachment was neither acted upon nor the defendants were ousted even for a single day. 18. Second case relied upon by the counsel for the respondent is a decision of Division Bench; Aneg Singh and others v. Ram Nath and others, 1973 AWR 589, this again is a matter in which the dispute relates to the proceeding under Section 145, Cr.P.C. and has no bearing to the controversy involved in the instant case. 19. Third case relied upon by the counsel for the respondents is; Janaki Pandyani v. Ganesh Panda (dead) by LRs. and another, JT 2000 (Suppl.2) SC 345, is also not very material. 20. However, question regarding adverse possession vis-à-vis attachment by the criminal Court was involved and the Apex Court in the case of Md. Mohammad Ali (Dead) through LRs. 19. Third case relied upon by the counsel for the respondents is; Janaki Pandyani v. Ganesh Panda (dead) by LRs. and another, JT 2000 (Suppl.2) SC 345, is also not very material. 20. However, question regarding adverse possession vis-à-vis attachment by the criminal Court was involved and the Apex Court in the case of Md. Mohammad Ali (Dead) through LRs. v. Jagadish Kalita and others, 2004 (1) AWC 105 (SC) held in paragraph No. 13.1 as quoted below : “On the other hand, if no partition by metes and bounds took place, the respondents herein were bound to plead and prove ouster of the plaintiff and/or his predecessors in interest from the land in question. For the said purpose, it was obligatory on the part of the respondents herein to specifically plead and prove as to since when their possession became adverse to the other co-sharers.” 21. In the instant case, the defendants have specifically pleaded and proved the specific date since when they claim ouster of the plaintiff from the land in question and they successfully discharged their obligation by establishing continuous hostile possession from the year 1958 till filing of the suit. As already held above, the defendants have come up with specific case and given definite and clear pleadings. This assertion made in the plaint are unequivocally admitted by the witnesses examined on behalf of the plaintiff. In addition to this, documentary evidence has also been adduced in evidence, which the trial Court had taken into consideration. Decisions of the Apex Court cited above by the counsel for the plaintiff/respondents in fact support the appellants’ case. 22. The other decisions relied upon by the counsel for the plaintiff/resondents are; Shambhu Prasad Singh v. Most. Phool Kumari and others, AIR 1971 SC 1337 ; Annasaheb Bapusaheb Patil and others v. Balwant @ Balasaheb Babusaheb Patil (dead) by LRs. and others etc., AIR 1995 SC 895 ; P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , Indira v. Arumugam and another, (1998) 1 SCC 614 ; Wuntakal Yalpi Chenabasavana Gowd v. Rao Bahadur Y. Mahabaleshwarappa, AIR 1954 SC 337 . and others etc., AIR 1995 SC 895 ; P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , Indira v. Arumugam and another, (1998) 1 SCC 614 ; Wuntakal Yalpi Chenabasavana Gowd v. Rao Bahadur Y. Mahabaleshwarappa, AIR 1954 SC 337 . In all those cases, occupation of the party claiming title on the basis of adverse possession was found to be interrupted at short interval whereas the finding in the present case is that the appellants were in continuous hostile possession of the property in question after a specific date i.e. 8.5.1958, attachment order was never given effect to and though the plaintiffs claim as a co-sharer is immaterial. The co-tenure holder ousted the plaintiff and this is an admitted fact. 23. In the circumstances, I do not agree with the findings of the lower appellate Court. On close scrutiny of the facts and circumstances discussed above, I hold that if co-sharers remain in adverse possession for a period of 12 years, which is definitely hostile to the plaintiff, right of co-sharers become extinct, I confirm the findings of the trial Court. The appeal was wrongly allowed by the lower appellate Court only on account of the fact that the property was attached in the proceedings under Section 145, Cr.P.C. whereas the possession continued to be with the defendant-appellants. Admittedly this possession was hostile possession within the knowledge of the plaintiff who did nothing for a long time i.e. after May, 1958 therefore, I agree with the findings recorded by the trial Court and suit is accordingly dismissed. The judgment and decree dated 18.11.1977 passed by 1st Additional District and Sessions Judge, Bulandshahar, is hereby set aside. The second appeal is allowed. 24. Cost on parties. ————