JUDGMENT Subhro Kamal Mukherjee, J. 1. RE: C. A. N. 10000 of 2009 This is an appeal against a preliminary decree passed in a partition suit. The learned trial judge decreed the partition suit and declared that the parties have 50% (fifty per cent.) shares each. 2. HAVING regard to the nature of the litigation and as the appellants were mislead by a clerk in obtaining certified copies of the judgement and decree, we hold that the appellants were prevented by sufficient cause from presenting the memorandum of appeal in time. The delay is, therefore, condoned. The application for condonation of delay stands allowed. The office is directed to register the appeal, if the appeal is otherwise in form. We direct the parties to bear their respective costs in this application. Re: F. A. T. No. 16 of 2009 On the prayer of Mr. Arindam Sen, learned advocate, appearing for the appellants and at the risk of the appellants, service of notice of the appeal on the respondent nos. 2 to 9 is dispensed with as they were proforma defendants in the suit and as they did not contest the case in the court below. 3. THE appeal is taken up for hearing in presence of the learned advocates appearing for the contesting parties after dispensation of all formalities. 4. AMARENDRA Kumar Chowdhury, the predecessor-in-interest of these appellants, and Manabendra Kumar Chowdhury, the plaintiff-respondent no. 1, jointly acquired the property-in- suit by a registered deed of sale dated July 19, 2005. They were admittedly in possession of the same. Amarendra Kumar Chowdhury died intestate and his heirs, the defendant nos. 1 to 7/appellants, became the owners to the extent of half share in respect of the property-in-suit by way of inheritance. 5. MANABENDRA Kumar Chowdhury, the plaintiff, left for America and it is suggested that he has permanently settled there. 6. MANABENDRA Kumar Chowdhury instituted this suit for partition. The acquisition of the property jointly by Amarendra Kumar Chowdhury, since deceased and Manabendra Kumar Chowdhury is not in dispute. 7. DEFENDANT nos. 5. MANABENDRA Kumar Chowdhury, the plaintiff, left for America and it is suggested that he has permanently settled there. 6. MANABENDRA Kumar Chowdhury instituted this suit for partition. The acquisition of the property jointly by Amarendra Kumar Chowdhury, since deceased and Manabendra Kumar Chowdhury is not in dispute. 7. DEFENDANT nos. 1 to 7 stated in the written statement that the plaintiff took Rs.1,17,000/- (Rupees one lakh seventeen thousand) only from his elder brother, Amarendra Kumar Chowdhury, at the time of his departure to America and promised to execute a deed of sale in respect of his half share in the property in favour of his elder brother, but the plaintiff did not execute the sale deed. It was, further, stated by the defendant nos. 1 to 7 that they were in possession of the suit property exclusively for more than twelve years and thereby they had acquired title in the entire property by adverse possession. 8. THE learned trial judge did not accept the plea of adverse possession. THE learned trial judge, also, held that the defendant no. 1 to 7 have failed to establish that the plaintiff took Rs.1,17,000/- (Rupees one lakh seventeen thousand) only from his elder brother and promised to transfer his share in favour of his elder brother. Manabendra Kumar Chowdhury, the plaintiff, left for America long back. According to the defendant nos. 1 to 7 he accepted Rs.1,17,000/- (Rupees one lakh seventeen thousand) only from his elder brother promising to convey his share in the property to his elder brother. Admittedly, Manabendra Kumar Chowdhury executed no deed. Neither the elder brother nor his heirs ever asserted their right on the strength of the said alleged agreement. 9. THEREFORE, when Manabendra filed the suit, the plea of alleged contract was taken for the first time, which is not convincing. 10. MANABENDRA Kumar Chowdhury, the plaintiff is admittedly a moiety shareholder in respect of the property in suit. Once an individual co-sharer has unequivocally expressed and clearly intimated to his co-sharers his decision to sever himself from the joint family, his right to obtain and possess the share to which he admittedly has a title is unimpeachable. 10. MANABENDRA Kumar Chowdhury, the plaintiff is admittedly a moiety shareholder in respect of the property in suit. Once an individual co-sharer has unequivocally expressed and clearly intimated to his co-sharers his decision to sever himself from the joint family, his right to obtain and possess the share to which he admittedly has a title is unimpeachable. Neither the co-sharers can question it, nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others. [See, Musammat Girja Bai Versus Sadashiv Dhundiraj and others reported in 20 CWN 1085 (PC)] The plea of adverse possession against a co-sharer is not easily available. Unimpeachable evidence is necessary to establish ouster of a co-sharer. In order to constitute ouster there must be some overt act by the co-owners to resist the other co-owner from possessing the property, which he is entitled to possess. Any co-owner claiming ouster against the other co-owner must show an intention to exclude him from possessing the property-in-suit. Such intention is expressed in any of the following ways namely, (1) by assertion of exclusive title; (2) by denial of title to other co- owner; or (3) by keeping out of possession the other co-owner even in spite of protest. So long as the co-owner has not been treating the joint property as his own disclaiming the title of other co- owner, he cannot establish ouster. In the case of a co-sharer, mere exercise of possession as of right, cannot make out a case of ouster of co-sharer and consequential exercise of adverse possession by the other co-sharer so that ultimately the title of the ousted co-sharer is extinguished on account of adverse possession for the prescribed period. 11. THERE is no material on record to sustain the plea of adverse possession. 12. WE feel that there is no merit in the appeal. WE are of the considered opinion that the learned trial judge rightly passed the decree declaring moiety share of the parties. We, therefore, dismiss the appeal and affirm the judgement and decree passed by the learned trial judge. 13. HAVING regard to the relationship of the parties, we direct the parties to bear their respective costs in this appeal. WE are of the considered opinion that the learned trial judge rightly passed the decree declaring moiety share of the parties. We, therefore, dismiss the appeal and affirm the judgement and decree passed by the learned trial judge. 13. HAVING regard to the relationship of the parties, we direct the parties to bear their respective costs in this appeal. As the appeal is dismissed, the connected application for stay filed under C.A.N. 10005 of 2009 becomes infructuous and is, also, dismissed. We make no order as to costs.