JUDGMENT : 1. Heard Ms. S. Sarma, learned counsel appearing on behalf of the appellants. Also heard Mr. A.M. Borbhuiya, learned counsel representing the respondents. 2. The present appellants are the defendants in Title Suit No. 30/1999 passed by the learned Civil Judge (Jr. Division) No. 1, Nalbari. The plaintiff-respondents preferred the suit for declaration of their right, title and interest over the B-Schedule land described in the plaint. Originally the land described in Schedule-A of the plaint was the paternal property of the fathers of both the parties to the suit. The land described in Schedule-B which is the suit land curved out of the land mentioned in the Schedule-A, which is the share of the plaintiff-respondents. After the death of the father of the plaintiff-respondents, they used to live jointly with the father of the defendant-appellants for some years. During the said period plaintiff-respondent No. 2 cultivated the land jointly. Subsequently, owing to inconvenience it was requested to the defendant-appellants to partition the Schedule-A land amicably between them on 15.1.1999. The plaintiff-respondents tried to make partition of the land but the defendant-appellants denied to give the share as described in the Schedule-B of the plaint. However, the defendant-appellants ploughed over the entire Schedule-A land on the plea that they if required, they would deliver the share of the crops. Accordingly, the suit has been filed with the prayers referred hereinabove. 3. The defendant-appellant Nos. 1 and 2 contested the suit by filing written statement. Amongst various defences, a plea was taken that the suit was barred by limitation and also denied that the Schedule-B belonged to the plaintiff-respondents. It is the defence raised by the defendant-appellants that their father and the father of the plaintiff-respondents divided the Schedule-A land by way of partition in the year 1967. Denying the jointness of the families of the parties to the suit and also joint cultivation over the suit land, it is the plea taken by the defendant-appellants that they were in continuous possession and cultivating the suit land since 1967 after the partition, so there is no question of further partition. The father of the defendant-appellants after the partition in the year 1967 continued possessing the suit land and had acquired title over the suit land by right of adverse possession and the same title devolved up on the defendant-respondents after the death of their father Dadhi Hazarika. The father of the defendant-appellants after the partition in the year 1967 continued possessing the suit land and had acquired title over the suit land by right of adverse possession and the same title devolved up on the defendant-respondents after the death of their father Dadhi Hazarika. Accordingly, the plaintiff-respondents have no right, title and interest and possession over the suit land. It is also pleaded that on the request of the plaintiff-respondent No. 1, Jogesh Hazarika (substituted by his legal heirs), the defendant/appellant No. 1 gave away 2K, 17L's of land to the local High School to enable the wife of Jogesh Hazarika to get appointment in the said school. Thus, pleading that the suit has been filed on misleading statements, the defendant-appellants prayed for dismissal of the suit. 4. The learned trial court on the basis of the pleadings framed the following issues: “1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by limitation? 4. Whether proper court fees have been paid? 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 6. Whether the plaintiffs have got, right, title and interest over the suit land ? 7. Whether the plaintiffs are entitled to get khas possession over the suit land ? 8. To what relief/reliefs plaintiffs are entitled?” 5. The trial court after hearing the parties and on the basis of the materials available on record dismissed the suit of the plaintiff-respondents. In the first appeal, preferred by the plaintiff-respondents the same was remanded back whereafter an additional issue was framed and the same is reproduced below: “1(a) Whether the defendants have been possessing the suit land adversely?” 6. After the remand, no fresh witnesses were adduced even after framing of the additional issue. The learned trial court thereafter decided issue Nos. 1, 2, 3, 4 and 5 in favour of the plaintiff-respondents. However, issue Nos. 6 and 7 along with the additional issue No. 1 (a) were decided in favour of the defendant-appellants. Accordingly, the suit was dismissed. Being aggrieved, the plaintiff-respondents preferred Title Appeal No. 2/2007 in the court of learned Civil Judge (Junior Division) No. 2, Nalbari. The said Appellate Court taking up the issue Nos. 6 and 1(a) allowed the appeal thereby decreeing the suit of the plaintiff-respondents. 7. Accordingly, the suit was dismissed. Being aggrieved, the plaintiff-respondents preferred Title Appeal No. 2/2007 in the court of learned Civil Judge (Junior Division) No. 2, Nalbari. The said Appellate Court taking up the issue Nos. 6 and 1(a) allowed the appeal thereby decreeing the suit of the plaintiff-respondents. 7. Challenging the said judgment and decree of the First Appellate Court, dated 14.9.2007 passed by the learned Civil Judge (Junior Division), Nalbari in Title Appeal No. 2/2007, the present second appeal has been preferred which was admitted on 26.5.2008 on the following substantial questions of law: “Whether the learned courts below were right in decreeing the right, title and interest and recovery of possession of the suit land, even though it has been held that there was partition between the plaintiffs and the defendants, without recording any finding as to whether the suit land falling to the share of the plaintiff?” 8. Ms. Sarma submits that the claim of the plaintiff-respondents cannot be considered inasmuch as the oral partition took place way back in the year 1967 and thereafter the said oral partition was acted upon by both the parties to the suit. Relying exhibits-Ka and Kha, Ms. Sarma submits, it is a fact that there was a partition and the same was acted upon by the parties which is very much apparent from the said two exhibits. Exhibit-Ka is a registered sale deed by way of which the plaintiff-respondents have sold land on their own. Similarly, Exhibit-Kha is gift deed by way of which the defendant-appellants had gifted a portion of the land out of their share to the local High School in order to get an appointment by the wife of the plaintiffs/respondent No. 1. It is also submitted that the land claimed by the plaintiff-respondents was under the possession of the defendant-appellants since the partition took place, way back in the year 1967 which cannot be claimed back owing to the long possession maintained by the defendant-appellants. Accordingly, Ms. Sarma submits that the findings of the learned First Appellate Court have no basis and the same needs interference. 9. Mr. Borbhuiyan, submits that the plea of adverse possession taken by the defendant-appellants is not applicable inasmuch as, the requisite ingredients for such adverse possession have not at all been pleaded. Not only that, they never even raised the same in their evidence. 9. Mr. Borbhuiyan, submits that the plea of adverse possession taken by the defendant-appellants is not applicable inasmuch as, the requisite ingredients for such adverse possession have not at all been pleaded. Not only that, they never even raised the same in their evidence. However, they have admitted that there was a partition way back in the year 1967 and on the basis of the said partition the defendant-appellants had all along been maintaining the possession over the Schedule-B land described in the plaint. The plea of adverse possession itself goes to show that the said Schedule-B land fell in the share of the plaintiff-respondents and there is no dispute to that effect. Accordingly, the First Appellate Court has correctly passed the judgment thereby decreeing the suit in favour of the plaintiff-respondents. 10. Considered the submissions of both the learned counsels. The learned trial court while discussing issue No. 6, relied heavily on the oral evidence led by the plaintiff's side. The learned trial court on the basis of the evidence of PW1 came to the finding that there was an admission on his part with regard to the partition between his father and the father of the defendant-appellants. In order to hold that there was a partition, the learned trial court gave much weight in Exhibit-Ka which is a certified copy of sale deed whereby the father of the plaintiff-respondents sold land measuring 2B, 3K, 10L to one Nabin Ch. Talukdar. Similarly, it also took note of Exhibit-Kha by way of which, the brother of the DW1 (defendant No. 1) gifted 2K, 17L's of land in favour of the local High School. The plaintiff side failed to rebut the said evidence whereby the fact of partition was held to be established. 11. In order to decide the fact of possession, the learned trial court relied the evidence of one Abed Ali, DW2, who deposed that the total land measuring 5B 2K under patta No. 423 had all along been cultivated by him as an Adhiar under the defendant-appellants. The learned trial court disbelieved the evidence of PW2, Sohrab Ali, who deposed that after the death of Dadhi Hazarika and Prithu Hazarika, the plaintiffs and defendants lived together and the plaintiff No. 2 used to cultivate the land held jointly by them. The learned trial court disbelieved the evidence of PW2, Sohrab Ali, who deposed that after the death of Dadhi Hazarika and Prithu Hazarika, the plaintiffs and defendants lived together and the plaintiff No. 2 used to cultivate the land held jointly by them. Accordingly, the learned trial court decided the issue No. 6 against the plaintiff-respondents by holding the possession in favour of the defendant-appellants. 12. While discussing issue No. 1(a), the learned trial court bringing reference of the discussions made in issue No. 6 held that there was partition between Prithu Hazarika and Dadhi Hazarika and drawing further references, that the father of the plaintiff-respondents died 30 years back and considering the year of death of the father of the plaintiff-respondents in 1964, it was held that the defendant-appellants were possessing and cultivating the suit land till date without any concealment. Further, taking into consideration, the evidence of DW2 that he was cultivating over the total land measuring 5B, 2K of Dag Nos. 423, the learned court below came to the conclusion that the defendant-appellants have been possessing the suit land adversely. On the basis of the said two findings, the learned trial court dismissed the suit of the plaintiff-respondents. 13. The learned First Appellate Court came to the findings that Prithu Hazarika and Dadhi Hazarika, the predecessor-in-interest of the parties to the suit, owned A-Schedule land measuring 5B, 2K of land of patta No. 359 and bringing into reference, the admission made in the written statement by the defendant-appellants that there was a partition in the year 1967 and they are enjoying the separate shares independently, took note of the relief claimed by the plaintiff-respondents to the extent of Schedule-B land. It was also considered that DW1 deposed that there was a partition in the year 1967 and his father was possessing the suit land since 1967 and on his death in the year 1983, the defendants/appellants are possessing the said B-Schedule land. Further, considering the evidence of PW1 to the effect that there was partition between Prithu Hazarika and Dadhi Hazarika by drawing reference of the sale transaction by way of Exhibit-Kha held that there took a partition between the fathers of the parties to the suit. Further, considering the evidence of PW1 to the effect that there was partition between Prithu Hazarika and Dadhi Hazarika by drawing reference of the sale transaction by way of Exhibit-Kha held that there took a partition between the fathers of the parties to the suit. However, the contention of the defendant-appellants with regard to adverse possession was disbelieved by drawing reference to section 44 of the Transfer of Property Act and rightly, drawing the conclusion that a possession of a co-sharer amounts to possession of the other co-sharer who are not possessing the land and such possession cannot constitute adverse possession unless there is total ouster of the co-sharer. Finally, the First Appellate Court concluded that the plaintiff-respondents are entitled to the reliefs including recovery of possession by holding that the defendant-appellants have not acquired any right over the suit land by way of adverse possession and decreed the suit in favour of plaintiff-respondents. 14. From the aforesaid findings of both the courts below, it can be concluded that there was a partition in the year 1967 and thereafter on the basis of the said partition the defendant-appellants maintained their possession over the suit land. But once the defendant-appellants have taken the plea of adverse possession, it can safely be held that the said Schedule-B land fell in the share of the father of the plaintiff-respondents. The plea of adverse possession which the defendant-appellants had taken had failed to substantiate the total ouster of the plaintiff-respondents from the Schedule B land. In Nagabhushanammal v. Chandikeswaralingam, (2016) 4 SCC 434 it was held that ‘Ouster’ does not mean only driving out of the co-sharer from the property. It will, however, not be completed unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the ouster of a co-owner, they are (1) declaration of hostile animus, (2) long and uninterrupted possession of the person pleading ouster, and (3) exercise of right of exclusive ownership openly and to the knowledge of the other co-owner. 15. On a thorough scrutiny of the evidence led by the defendant-appellants it is very much apparent that they failed to prove the requisite ingredients to form total ouster of the plaintiff-respondents from the Schedule-B land. In such a situation, the learned First Appellate Court has rightly decreed the suit of the plaintiff-respondents. 16. 15. On a thorough scrutiny of the evidence led by the defendant-appellants it is very much apparent that they failed to prove the requisite ingredients to form total ouster of the plaintiff-respondents from the Schedule-B land. In such a situation, the learned First Appellate Court has rightly decreed the suit of the plaintiff-respondents. 16. By way of taking the plea of adverse possession by the defendant-appellants, they have admitted the right, title and interest of the plaintiff-respondents. That presumption follows on the basis of the depositions of the parties to the suit with respect to the partition which was affected between the predecessor-in-interest of the parties to the suit, whereby both the parties admitted the partition. Under such circumstances, where there is no denial with regard to the share as specified and shown in the plaint, it need not be recorded that the suit land fell in the share of the plaintiff-respondents. Accordingly, the substantial question of law is decided in the affirmative. 17. This second appeal fails and the same is dismissed without cost. The judgment and decree of the First Appellate Court is upheld. 18. Send back the LCR.