JUDGMENT : SURYA PRAKASH KESARWANI, J. 1. Heard Sri Vishnu Singh assisted by Sri A.K.Rai, learned counsel for the appellants and Sri Kunal Ravi Singh, learned counsel for the defendant-respondents-Ist set (Nos.1 to 8). Facts of the Case 2. Briefly stated facts of the present case are that by the impugned judgment dated 26.4.1989 in Original Suit No.95 of 1974 (Sudama Ji v. Chhotey Lal and others), the partition suit filed by the plaintiff-appellant was dismissed. The trial court held that the plaintiff-appellant is the co-owner being son of late Beni Madhav but dismissed the suit on the ground that the defendant co-sharer of house no.1(as shown in the plaint) has perfected his title by adverse possession. During pendency of the suit the plaintiff-appellant Sudamaji sold his 1/3rd share in House No.1 to Smt. Sitapati Devi and another (appellants of connected First Appeal No.363 of 1989). 3. Aggrieved with this judgment, the plaintiff-appellant Sudami Ji filed First Appeal No.326 of 1989, while the vendee appellant Smt. Sitapati Devi and another filed connected First Appeal No.363 of 1989.The defendants-respondents filed a cross objection in the First Appeal No.326 of 1989 to challenge the finding that the plaintiff-appellant is the son of Beni Madhav. 4. With the consent of the learned counsel for the parties both the appeals are being finally heard together. Submissions- 5. Learned counsel for the appellants submits as under: (i) Plaintiff Sudama Ji has proved by the evidences that he is the son of Beni Madhav. The trial court answered all the relevant issues in this regard in favour of the plaintiff. (ii) Total 16 issues were framed in the suit but no issue was framed on the point of adverse possession. Therefore, without relevant pleadings and evidences the court below has erred in returning the finding of adverse possession. Reliance is placed on the judgment of Hon'ble Supreme Court in Joynath Gola and others v. Bhabani Prasad Choudhary and others Judgment Today 1997(3) SC 720. (iii) The court below has committed a manifest error of law and facts to return a finding of adverse possession against the plaintiff co-owner of House No.1. That apart, the alleged adverse possession was not within the knowledge of the plaintiff, as he was minor at the time of death of his father. (iii) The court below has committed a manifest error of law and facts to return a finding of adverse possession against the plaintiff co-owner of House No.1. That apart, the alleged adverse possession was not within the knowledge of the plaintiff, as he was minor at the time of death of his father. Reliance is placed on the judgment of Hon'ble Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 , judgment of this Court in Ayodhya and others v. The Deputy Director of Consolidation and others, 1978 AWC(Alld.) 478 and in the case of Shambhoo v. Deputy Director of Consolidation and others 2014(10) ADJ 557 . 6. Learned counsel for the defendants-respondents (Ist set) submits as under: (i) The will on the basis of which the plaintiff-appellant has claimed to be the son of late Beni Madhav, was never proved in accordance with the provisions of Section 68 of the Evidence Act. The original will was not produced. The attesting witnesses were also not produced. Section 69 of the Evidence Act, is not attracted on the facts of the present case, as the attesting witness was alive at the time of filing of the suit. (ii) With regard to the testimony of P.W. 1, the court below recorded a perverse finding that he was the attesting witness whereas his evidence itself shows that he was neither the attesting witnesses nor he appeared before the Registrar at the time of execution of the will-deed of Beni Madhav dated 5.11.1957. (iii) No evidence could be led by the plaintiff-appellant to establish that he is the son of Beni Madhav. Therefore, the finding recorded by the court below that the plaintiff-appellant Sudama Ji is the son of Beni Madhav, is perverse and deserves to be set aside. 7. No other point has been argued before me by the learned counsels for the parties. Discussion and Findings 8. I have carefully considered the submissions of the learned counsels for the parties. 9. Considering the submissions of the learned counsels for the parties and with their consent the following questions are being framed for determination in these appeals :- “(a) Whether the plaintiff-appellant Sudama Ji is the son of Beni Madho ? Discussion and Findings 8. I have carefully considered the submissions of the learned counsels for the parties. 9. Considering the submissions of the learned counsels for the parties and with their consent the following questions are being framed for determination in these appeals :- “(a) Whether the plaintiff-appellant Sudama Ji is the son of Beni Madho ? (b) Whether under the facts and circumstances of the case, the court below has correctly held that the plaintiff-appellant has lost his right of 1/3rd share in House No.1, since the co-sharer/co-owners have perfected their title by adverse possession ?” Question No.(a): “Whether the plaintiff-appellant Sudama Ji is the son of Beni Madho” ? 10. The plaintiff-appellant filed Original Suit No.95 of 1974 for partition of several ancestral properties as mentioned in Schedule 'A' and Schedule 'B' to the plaint. In the property of Schedule 'A' the plaintiff-appellant has claimed 1/3rd share, which includes the disputed property. 11. Undisputedly, the disputed property was originally owned by late Shiv Nandan Bhagat, who had three sons namely, Sahdev Ram, Raghuvir Ram and Beni Madhav. The defendant nos. 1 to 13 (Defendant Ist Set and Defendant IInd Set) are the heirs and successors of late Sahdev Ram son of late Shiv Nandan Bhagat. The second son of late Shiv Nandan Bhagat, namely, Raghuvir Ram died issueless. 12. According to the defendant Ist set, the second son of late Shiv Nandan Bhagat, namely, Raghuvir Ram gifted his 1/3rd share on 16.8.1958 to the defendant no.1 Chhote Lal and the father of defendant nos. 9 and 10 namely, Sri Ganesh Prasad. The third son of late Shiv Nandan Bhagat, namely, Beni Madhav Ram had three daughters namely, Radha Devi, Shiv Kumari Devi and Ram Kumari (defendant Nos. 21, 22 and 23) and allegedly one son namely Sudama Ji (Plaintiff-appellant). 13. Undisputedly, the aforesaid three sons of late Shiv Nandan Bhagat, namely, Sahdev Ram, Raghuvir Ram and Beni Madhav had 1/3rd share in the disputed property, which was ancestral property. Admittedly, the aforesaid Beni Madhav died in the year 1959. He had executed a registered will deed dated 5/14.11.1957 in favour of his son Sudama Ji i.e., the plaintiff-appellant with respect to the disputed property, while the plaintiff-appellant was aged about 3 years. The plaintiff-appellant was born on 9.5.1954. When the appellant became major then he filed the partition Suit No.95 of 1974 on 2.2.1972. He had executed a registered will deed dated 5/14.11.1957 in favour of his son Sudama Ji i.e., the plaintiff-appellant with respect to the disputed property, while the plaintiff-appellant was aged about 3 years. The plaintiff-appellant was born on 9.5.1954. When the appellant became major then he filed the partition Suit No.95 of 1974 on 2.2.1972. At the time of filing of the suit, plaintiff-appellant was aged about 19 years. He also filed a mutation case for mutation of his name in Municipality and his name was mutated in place of late Beni Madhav. 14. In paragraph nos. 4 and 5 of the written statement, the defendant no.1 Chhotey Lal, son of Sahdev Ram admitted that Beni Madhav had 1/3rd share in the disputed property but set up a case of owning the share of Beni Mahdav by the sons of his brother namely, Sahdev Ram. In his aforesaid written statement (Paper No.183 Ka1) dated 7.8.1976, the defendant no.1 Chhotey Lal stated in paragraph no.16, that he was in possession of the disputed property from the last 16-17 years and the plaintiff had never been in possession of the disputed property. He denied the will deed of Beni Madhav Ram dated 5.11.1957. He denied the plaintiff-appellant to be the son of late Beni Madhav Ram but completely failed to disclose or make any allegation about the parental of the plaintiff-appellant. Before the trial court the parties had led their evidences. The trial court decided the issue No.1 in favour of the plaintiff-appellant and held that the plaintiff-appellant Sudama Ji is the son of Beni Madhav Ram. 15. To arrive at the aforesaid finding, the trial court has referred and discussed several evidences. Exh.18 is the copy of the birth and death register obtained from Nagar Palika showing that son was borne to Beni Madhav Ram on 9.5.1954. The contesting defendant Ist set raised objection regarding reliability of this evidence on the ground that there should be some reliable evidence to connect the plaintiff-appellant with the birth register. However, they completely failed to lead any satisfactory evidence to draw an inference or even to suggest that this evidence i.e., birth and death register relates to any other son born to Beni Madhav and not the plaintiff. The plaintiff also filed certified copy of the will deed which was registered on 14.11.1957. However, they completely failed to lead any satisfactory evidence to draw an inference or even to suggest that this evidence i.e., birth and death register relates to any other son born to Beni Madhav and not the plaintiff. The plaintiff also filed certified copy of the will deed which was registered on 14.11.1957. The trial court found it to be a registered document of more than 30 years old. The original will-deed was not produced by the plaintiff-appellant, since it was lost and an F.I.R. was lodged. The circumstances, for not producing original will was satisfactorily explained. The will was found to be registered bearing the endorsement of the Sub Registrar regarding its due execution by the executant Beni Madhav. Therefore, the registration certificate of the will was held to be an evidence of execution of the will by the executant in view of the law laid down by this Court in Mishri Lal and another v. Bhagwati Prasad 1955 ALJ 741. The trial court also referred to the judgment of Hon'ble Supreme Court in Annappurna v. Khagendra Nath, AIR 1962 SC 567 in which it was held that if a will is registered it may be taken to be circumstance to prove its genuineness, but the fact that a will was registered, will not be sufficient by itself to dispel all such suspicion regarding its genuineness where such suspicion exists. In the impugned judgment the trial court recorded a finding of fact in para-33 that nothing has been pointed out by the defendant to suggest that the registration was either done in an improper manner or that the contents of the will deed were not read over or explained by the Registrar to the executant or that any irregularity was committed by the Sub-Registrar in registering the will. Under such circumstance the presumption that the Sub-Registrar had performed his duties of reading over and explaining the will to the executent and informing him that the document was a will describing the property, would attach to the deed. 16. Neither in their cross objection the defendant-cross objector has disputed the aforesaid findings of fact nor raised any argument before me to dispute it. 17. 16. Neither in their cross objection the defendant-cross objector has disputed the aforesaid findings of fact nor raised any argument before me to dispute it. 17. Learned counsel for the defendant-cross objector has also not raised any argument before me to dispute the finding recorded by the court below on the basis of Exbt.18 i.e. the birth and death register which clearly evidenced that a son was born to Beni Madhav on 9.5.1959. 18. To arrive at the finding that the plaintiff-appellant is the son of Beni Madhav, the trial court also relied upon Exbt.Ka-4 and Exbt. 5 and recorded finding of fact which has not been even disputed before me nor it could be pointed out that the finding based on Ext. Ka-4 and Ka-5 are perverse. The relevant findings recorded in the impugned judgment is reproduced below : “The will is not the only evidence in favour of the plaintiff to prove that he was the son of Beni Madhav. Ext. 1 is the copy of the objection filed by Sri Kishun, real brother of deceased defendant Chhote Lal in Original Suit No.59/1968, Sri Kishun vs. Chhote Lal. This suit was a suit of partition. The plaintiff Sudama moved an application to be brought o record as of defendant in that suit claiming 1/3rd share in the property on the ground that he was son of Beni Madhav. Sri Kishun filed objection against the application of Sudama to be arrayed as a party and Ext. 1 is the copy of objection filed by Sri Kishun. A perusal of the objection will show that Sri Kishun admitted the share of Sudama in the disputed property in one of the houses presently in dispute. He, however, disputed that the plaintiff has got 4/9 share in other properties as has been claimed by him in any way this admission of Sri Kishun will undoubtedly proved that the plaintiff was the son of Beni Madhav and entitled for 1/3rd share of his father in the ancestral property. It was pointed out by the learned counsel for the defendant that the admission of Sri Kishun was hostile to Chhote Lal could not bind the defendant and had no effect on the rights of the defendant with regard to the property in suit. It is true that the admission of Sri Kishun cannot bind Chhote Lal and others. It was pointed out by the learned counsel for the defendant that the admission of Sri Kishun was hostile to Chhote Lal could not bind the defendant and had no effect on the rights of the defendant with regard to the property in suit. It is true that the admission of Sri Kishun cannot bind Chhote Lal and others. But this will go a long way to support the plaintiff's claim that he was the son of Beni Madhav. In a suit for partition it could not be said that Sri Kishun was hostile to Chhote Lal. He was claiming his 1/3rd share against his brother. Besides this when Sri Kishun admitted that Sudama was son of Beni Madhav, this admission worked if against his own interest because if Sudama was not to be the son of Beni Madhav in that event the ancestral property would devolve on the only survival branch of Sahdeo who was father of Chhote Lal and Sri Kishun. By making the admission that Sudama had 1/3rd share in the property in dispute even Sudama's own interest was adversely effected as it was an admission made against his own interest and thus entitled to highest evidentiary value in law. Therefore, this document conclusively prove that the plaintiff is the son of Beni Madhav”. 19. The finding based on documentary evidence (Ext. 21 and 5A) relating to Original Suit No.750 of 1955 filed by late Beni Madhav Ram has neither been disputed before me nor any perversity could be pointed out by the learned counsel for the defendant-cross objector. The relevant portion of the findings in this regard recorded by the trial court is reproduced below: “There is another document (Ext. 21) which will throw light on the question of parentage Sudama. It appears that Beni Madhav had filed original suit no.750/55 in the court of Munsif East against Harbansh Ram under section 7-B of U.P. Temporary Control of Rent and Eviction Act, Act No.3 of 1947 for ejectment from the shop. This was in respect to the western portion of the house. Beni Madhav died during the pendency of the suit. The plaintiff Sudama was substituted in his place under the next friendship of his maternal uncle Dina Ram. This suit was decreed (vide copy of degree Ext. 5-A). This was in respect to the western portion of the house. Beni Madhav died during the pendency of the suit. The plaintiff Sudama was substituted in his place under the next friendship of his maternal uncle Dina Ram. This suit was decreed (vide copy of degree Ext. 5-A). No steps were taken by Chhote Lal to be brought on record in place of Beni Madhav and no objection was filed when Sudama moved application for substitution in his place. If comparison is made between the conduct of Chhote Lal and plaintiff then it would become clear that while Sudama conducted himself as the son of Beni Madhav, Chhote Lal did not take any step which he ought to have taken when Bani Madhav died without leaving a son. This from whatever point of view the mater is examined it would become crystal clear that Sudama is son of Beni Madhav. Even assuming that order of substitution does not confer any title upon the person was substituted nevertheless it does create an evidence in his favour and may also cast cloud over the title of rightful owner. If Chhote Lal was the rightful owner of the property of Beni Madhav after his death it was to be expected of him that he should have taken all the precautions in the right place to be brought on record himself and secondly to contest and prevent Sudam or for that matter any other person to be substituted in place of the deceased Beni Mathav. But he did not take any step from either of the two points of view. His conduct is, therefore, consistently indirectly with the fact admitted the plaintiff to be the son of Beni Mathav and that appears to be only reason why he did not contest his substitution application for being brought on record in place of Beni Madhav when the same was moved in the case”. 20. Exh.18 is the copy of the birth and death register obtained from Nagar Palika showing that son was borne to Beni Madhav Ram on 9.5.1954. The contesting defendant Ist set raised objection regarding reliability of this evidence on the ground that there should be some reliable evidence to connect the plaintiff-appellant with the birth register. 20. Exh.18 is the copy of the birth and death register obtained from Nagar Palika showing that son was borne to Beni Madhav Ram on 9.5.1954. The contesting defendant Ist set raised objection regarding reliability of this evidence on the ground that there should be some reliable evidence to connect the plaintiff-appellant with the birth register. However, they completely failed to lead any satisfactory evidence to draw an inference or even to suggest that this evidence i.e., birth and death register relates to any other son born to Beni Madhav and not the plaintiff. Learned counsel for the defendant-cross objector has also not raised any argument before me to dispute the finding recorded by the court below on the basis of Exh.18 i.e. the birth and death register which clearly evidenced that a son was born to Beni Madhav on 9.5.1959. 21. Apart from above, the defendant Chhote Lal himself filed a suit No.415 of 1974 (Chhotey Lal v. Sudama) on 2.11.1974 for permanent injunction to restrain the plaintiff'-appellant from entering in House No.1 by force. This evidence coupled with the facts afore-stated, leave no manner of doubt about the correctness of the findings recorded by the trial court in the impugned judgment that the plaintiff-appellant is the son of Beni Madhav Ram. 22. In view of the above discussions, the findings recorded by the trial court on Issue No.1 that the plaintiff-appellant Sudama Ji is the son of Beni Madhav Ram, is correct and lawful and does not suffer from any infirmity or perversity. Consequently, this finding of the court below is upheld and the cross-objection of the defendant-respondent is dismissed. Question No.(b): “Whether under the facts and circumstances of the case, the court below has correctly held that the plaintiff-appellant has lost his right of 1/3rd share in House No.1, since the co-sharer/co-owners have perfected their title by adverse possession ?” 23. In the case of Janki Pandyani v. Ganeshwar Panda (DEAD) BY LRS., (2001) 10 SCC 434 , Hon'ble Supreme Court considered the question of adverse possession in the matter of a joint Hindu property and held that adverse possession cannot be claimed by one co-sharer against the other co-sharer so long as the property has not been partitioned. 24. In Vidya Devi alias Vidya Vati (DEAD) BY LRS. 24. In Vidya Devi alias Vidya Vati (DEAD) BY LRS. v. Prem Prakash and others, (1995) 4 SCC 496 (paras 21 to 28), a three Judges' Bench of Hon'ble Supreme Court considered the question of adverse possession and held as under: 21. Normally, where the property is joint, co-sharers are the representatives of each another. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of others joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition. 22."Adverse possession" means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. (See: Gaya Parshad Dikshit Vs. Nirmal Chander and another ( AIR 1984 SC 930 ). The denial of title of the true owner is a sign of adverse possession. In Ezaz Ali Vs. Special Manager, Court of Wards ( AIR 1935 PC 53 ), it was observed: "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." 23. Dr. Markby in his treatise "Elements of Law" (Second Edition) has observed that possession "to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. (See also: AIR 1947 PC 15 ). 24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners. (See: Maharajadhiraj of Burdhwan, Udaychand Mahatab Chand Vs. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners. (See: Maharajadhiraj of Burdhwan, Udaychand Mahatab Chand Vs. Subodh Gopal Bose and others AIR 1971 SC 376 ; P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314 ; Mohammad Baqar and others Vs. Naim-un-Nisa Bibi & Others AIR 1956 SC 548 ). 25. In Karbali Begum Vs. Mohd Sayeed ( AIR 1981 SC 77 ), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. 26. Certain observations of the Privy Council in Coera Vs. Appuhamy ( AIR 1914 PC 243 , 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'. His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result." 27. From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P.Lakshmi Reddy's case (supra) which has since been followed in Mohd. Zain-ul-Abdin Vs. Syed Ahmad Mohiudding ( AIR 1990 SC 507 ). 28."Ouster" does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. Zain-ul-Abdin Vs. Syed Ahmad Mohiudding ( AIR 1990 SC 507 ). 28."Ouster" does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law”. 25. In Nagabhushanammal (DEAD) BY LEGAL v. C. Chandikeswaralingam, (2016)4 SCC 434 (Paragraph Nos. 21 to 24) Hon'ble Supreme Court held as under: “21. The other main defense in the suit is ouster and limitation. Ouster is a weak defense in a suit for partition of family property and it is strong if the defendant is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of the other co-owner. 22. This court in Syed Shah Ghulam Ghouse Mohiuddin and others v. Syed Shah Ahmed Mohiuddin Kamisul Quadri and Ors, (2004) 3 SCC 277 held that possession of one co-owner is presumed to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them. 23. A three judge bench of this court in P.Lakshmi Reddy v. R.Lakshmi Reddy[6], while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows: “4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [ (1900) LR 27 IA 136, 140] ). 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 out 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-heir's title. (See Cores v. Appuhamy [(1912) AC 230)]. 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. This does not necessarily mean that there must be an express demand by one and denial by the other.” 24. This Court in Vidya Devi v. Prem Prakash, AIR 1995 SC 1789 held that: “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.” (Emphasis supplied by me) 26. In Nanjegowda alias Gowda (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER V. RAMEGOWDA, (2018)1 SCC 574 (Paragraph 19) Hon'ble Supreme Court considered the question of adverse possession amongst the members of one family for want of any animus among them over the land belonging to their family and answered in negative as under: “19.In our opinion, the stand taken by the defendants was wholly inconsistent. They first set up a plea of adverse possession but it was rightly held not proved. The defendants, however, did not challenge this finding in the second appeal, which became final. Even otherwise, the plea of adverse possession was wholly misconceived and untenable. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family”. 27. In Chhote Khan v. Mal Khan, AIR 1954 SC 575 , Hon'ble Supreme Court considered the question of adverse possession and on an arrangement between co-sharers and held that no question of adverse possession would arise. 28. In Shambhu Prasad Singh v. Phool Kumari, (1971)2 SCC 28 (Para 18), Hon'ble Supreme Court considered the question as to whether mere use and enjoyment does amount to adverse possession ? and answered it in negative. The relevant portion of the judgment is reproduced below: “On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. and answered it in negative. The relevant portion of the judgment is reproduced below: “On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. Accordingly, if a holder of title proves that he too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds. (See Kutbali Moothavar v. Paringati Kunharankutty (1921) 48 IA 395, 404: AIR 1922 PC 181 . As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing cosharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. (See Lakshmi Reddy v. Lakshmi Reddy, 1957 SCR 195 , 202: AIR 1957 SC 314 and also Mohammad Baqar v. Naim-un-Nisa Bibi AIR 1956 SC 548 But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by reentry upon the property or by resuming possession in such a manner as it was possible to do. (See Wuntakal Yulpi Chenabasavana Gowd v. Y.Mahaba leshwarappa, 1955(1) SCR 131 : AIR 1954 SC 337 . The mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient to interrupt the exclusiveness or the continuity of adverse possession ,so as not to extinguish the rights of the dispossessed co-sharer. (See Ammakannu Ammal v. Narayanaswami Mudaliar) AIR 1923 Mad. 633: 17 MLW 629: 72 IC 635”. 29. The mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient to interrupt the exclusiveness or the continuity of adverse possession ,so as not to extinguish the rights of the dispossessed co-sharer. (See Ammakannu Ammal v. Narayanaswami Mudaliar) AIR 1923 Mad. 633: 17 MLW 629: 72 IC 635”. 29. In Mohammad Baqar and others v. Naim-un-Nisa Bibi and another, AIR 1956 SC 548 , Hon'ble Supreme Court held that the possession of one co-sharer is possession of all co-sharers, it can not be adverse to them, unless there is a denial of their right to their knowledge by the person in possession and exclusion and ouster for the statutory period. 30. In Darshan Singh v. Gujjar Singh, (2002) 2 SCC 62 (Paragraph Nos. 7 and 9), Hon'ble Supreme Court considered the question of adverse possession by a co-sharer and held as under: “7.The next question which requires our decision is whether Rulia Singh and after his death the present appellants, who were in possession of the land since 1930 and also got their names mutated, have perfected their title by adverse possession over the land of Jagjit Singh. It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers. 9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied”. 31. The law of adverse possession has been well discussed by Hon'ble Supreme Court in series of judgments including in Karnataka Board of wakf v. Government of India, (2004) 10 SCC 779 (Paragraph 11), Swaroop Singh v. Banto (2005) 8 SCC 330 (Paragraph Nos. 29 and 30), T. Anjanappa & Others v. Somalingappa & Another (2006) 7 SCC 570 (Paragraph No.20), P.T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59 (Paragraph Nos. 29 and 30), T. Anjanappa & Others v. Somalingappa & Another (2006) 7 SCC 570 (Paragraph No.20), P.T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59 (Paragraph Nos. 5 and 6), Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, (2009) 16 SCC 517 , D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 (Paragraph No.3), Ram Daan (Dead), through L.R.S. v. Urban Improvement Trust (2014)8 SC 902 (Paragraph No.11), Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165 , M. Venkatesh and others v. Commissioner, Bangalore Development Authority, 2015(17) SCC (Paragraph Nos. 18 to 21), Dharmarajan and others v. Valliammal & Others, 2008(2) SCC 741 (Paragraph No.11), B. Leelavathi v. Honnamma and another, 2005 (11) SCC 115 , A.S. Vidyasagar v. Karnataka Karunadham, 1995 (Supp.) (4) SCC 570 (Paragraph No.5-Permissive possession -Not adverse possession), State of Haryana v. Mukesh Kumar and others, (2011)10 SCC 404 ( Paragraph Nos. 32 and 39) and the judgments of this Court in Prabhu Narain Sharma v. State of U.P., AIR 1983 Alld. 223 (Paragraph No.6) and in U.P. Gandhi Smarak Nidhi v. Aziz Mian and others, 2013(3) ADJ 321 (Paragraph Nos. 20-28 and 228-238), which supports the view taken by me in paras 14 and 15 above. LAW OF ADVERSE POSSESSION : 32. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. A person pleading adverse possession has no equities in his favour. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 33. The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) On what date he came into possession (b) What was the nature of his possession (c) Whether the factum of possession was known to the other party ; (d) How long his possession has continued, and (e) his possession was open and undisturbed. Adverse possession in case of Co-sharer/Co-heir 34. Having extracted above, the settled principles of law of adverse possession, now I proceed to examine the law of adverse possession in case of a property owned by co-sharers/co-heirs. A co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer, who is not in possession and right of such co-sharer would be deemed to be protected by the trustee co-sharer. There can be no adverse possession among the members of one family for want of any animus among them belonging to their family. Adverse possession cannot be claimed by one co-sharer against the other co-sharer so long as the property has not been partitioned. In order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. In order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. Ouster is a weak defence in a suit for partition in a family for property and it is a strong defence when the defendant is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of exclusive ownership openly and to the knowledge of other co-sharer so as to constitute ouster which shall not be completed unless it is coupled with all other ingredients required to constitute adverse possession which broadly are- (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-sharer. Findings regarding adverse possession on the facts of the present case: 35. Findings regarding adverse possession on the facts of the present case: 35. The relevant pleadings made by the defendant no.1 in his written statement dated 7.8.1976 (paper No.183-Ka1) with regard to partition and possession over the disputed property i.e. house No.1 are as under: **8- ;g fd gjfxt edkukr futk;h dk caVokjk njfe;ku lgnso jke firk eqíkysg u0 1] oh j?kqohj jke vkSj csuh ek/kks jke ds] dHkh ugha gqvk vkSj u csuh ek/kkS jke dks edku u0 1 es 1@3 fgLlk ctkfuc n[khy feyk] u edkukr u0 2 o 3 esa 4@9 oks 4@9 fgLlk feyk vkSj u 'ks"k nksuks HkkbZ lgnso jke vkSj j?kqohj jke dks edku u0 1 eas 1@3 oks 1@3 feyk vkSj u edkukr u0 2] 3] 4 esa 'ks"k fgLlk feykA tqeyk c;ku eqíbZ ljklj xyr vkSj >wB gSA 11- ;g fd gjfxt eqíbZ dks edku u0 1 ds fdlh nqdku ls dksbZ okLrk oks ljksdkj ugha jgk gS vkSj u edku etdwj ds fdlh fdjk;knkj ls dHkh dksbZ okLrk oks ljksdkj jgk gS vkSj u eqíbZ dks vkt rd fdlh fdjk;knkj ls ,d iSlk Hkh tj fdjk;k olwy gqvk gSA eqíbZ us o c;kukr xyr vkSj >waBk eqdnek [kQhQk u0 52@70 vnkyr flfoy tt cfy;k esa f[kykQ jsoky flag] fdjk;knkj nkf[ky fd;kA gkykafd mijksDr fdjk;knkjku ge eqíkysg u0 1 cjkcj fdjk;k olwy djrk vkrk FkkA pquakps mijksDr jsoky flag us eqrkfcd vlfy;r ds eqíbZ ds ekfydkuk gd nqdku utkbZ ls budkj fd;k tks ckngw fnukad 9-1-76 [kkfjt gks x;k gSA blls Hkh eqíbZ ds dsl dh >qBk;h lkfcr gSA 16- ;g fd ge eqíkysge tqeyk edkukr futk;h ij ekfydkuk vkSj eq[kkfyQkuk ogudkj gd eqíbZ cjkcj dkfct n[khy tk;n vt 16&17 lky ls pys vkrs gS gj~fxt eqíbZ fdlh fgLlk tk;nkn ij dHkh dkfct n[khy ugha gqvkA nkok eqíbZ es reknhZ vkfjt gSAß 36. Thus, the defendant-respondent claiming adverse possession have neither specifically pleaded before the court below that on what date he came into possession, what was the nature of his possession, whether factum of possession was known to the plaintiff-appellant and his possession was open and undisturbed. As per own pleading of the defendant-respondent there was no partition of the disputed property which originally belong to their ancestor late Shiv Nandan Bhagat. As per own pleading of the defendant-respondent there was no partition of the disputed property which originally belong to their ancestor late Shiv Nandan Bhagat. Thus, in the absence of any specific pleading as aforesaid, the finding of adverse possession recorded by the court below, cannot be sustained in view of the law laid down by Hon'ble Supreme Court in Vidya Devi alias Vidya Vati (DEAD) BY LRS (supra), Janki Pandyani (supra), Chhote Khan (supra), Shambhu Prasad Singh (supra), Shambhu Prasad Singh (supra), Darshan Singh (supra), Mohammad Baqar and others (supra) and Nanjegowda alias Gowda (Dead) by legal representatives and another (supra). 37. No specific pleading of adverse possession was made by the defendant-respondent in his written statement. No issue was framed by the trial court on the question of adverse possession. Issue No.8 was as under : “Whether the suit is barred by time ?” It is only during the course of argument on the afore-quoted issue no.8, the defendant-respondent canvassed his submissions of adverse possession. The findings recorded by the court below, while deciding the afore-quoted issue no.8, is reproduced below : “During the course of argument the plea of adverse possession was canvassed. No specific issue has been framed on this plea by the Civil Judge. My attention, however, was invited to the pleadings raised in para 3 of additional pleas of Chhote Lal where it was clearly asserted that the plaintiff had no title to or possession over any of the disputed properties. In para 5 it was alleged that after the death of Beni Madhav, the plaintiff enters into possession in their own right as well as adversely. In para 6, the defendants alleged that they were in adverse possession. The sale-deeds of different houses executed by the defendant no.1 and Smt. Tulsi Devi defendant no.10, has been said to be justified on the ground that they were entitled in law as they were the owners of the entire house. In para 8 of the written statement, it was alleged that the plaintiff entered into possession under the terms of the will executed by Beni Madhav in his favour. Under such circumstances it could not be said that the plea of adverse possession has not been raised by the defendants in their written statement. In para 8 of the written statement, it was alleged that the plaintiff entered into possession under the terms of the will executed by Beni Madhav in his favour. Under such circumstances it could not be said that the plea of adverse possession has not been raised by the defendants in their written statement. It has been clearly asserted when the parties have entered into the witness box with all the pleas having properly understood the mere fact that no specific issue has been raised on this point is no sufficient to exclude its consideration. Accordingly, the plea of adverse possession as has been canvassed by the learned counsel for the defendants, during the course of argument, is being disposed of. For proper appreciation of this plea of adverse possession, the will executed by the plaintiffs' father would throw considerable light regarding the circumstances under which it was so done. The will receipts that the property between the three brothers had been executed, but this plea has been found to have not been established in this case. Similarly the plea that each brother was living separately in specified partitioned portion of the houses too has not been found to be established by the plaintiff. The plaintiff was small child when this will was executed. The executants of the will apprehended dispute to the property and it was this anxiety which permitted him to execute the will. This dispute could not have arisen, if the property was already partitioned and each of the three brothers were in separate possession. Beni Madhav anticipated this conflict from his brothers and from his minor son and he thought to execute a will to get away the difficulties. One of the condition in the will was that even after his death the plaintiff remain minor and he will be brought up by his maternal grand-father and after the death of his maternal grand father, his maternal uncle Chhote would be his guardian responsible him to bring him up. It is undisputed fact that after a few years of the execution of the will in 1957, Beni Madhav died. It is further undisputed that the plaintiff was a minor. He was brought up, after the death of Beni Madhav, by his maternal grand-father and subsequently, by his maternal uncle. Infact, he filed the suit through next friend Chhote, his maternal uncle. It is further undisputed that the plaintiff was a minor. He was brought up, after the death of Beni Madhav, by his maternal grand-father and subsequently, by his maternal uncle. Infact, he filed the suit through next friend Chhote, his maternal uncle. In a situation like this when the houses were not partitioned between the three branches although it was so asserted by Beni Madhav in his will because he had no other option and when the plaintiff was minor and when the branch of Chhote Lal, defendant was quite hostile it is easy to appreciate that the minor must have been taken away by his maternal grand-father for being brought up. He had actually left the house and the property during the period of his minority and was maintained by the maternal grand-father and material uncle at different places. Of course, the 1/3rd share of Beni Madhav in the disputed property has undoubtedly developed on them. The question is whether under such circumstances and as between co-owners the plea of adverse possession can succeed. Even the plaintiff's witness Jagarnath Tiwari (P.W. 1) admitted that Beni Madhav executed the will because he appended that Chhote lal would not give any share to Sudama after his (Beni Madhav) death, Jagarnat Tewari (P.W.1) is a marginal witness of the will. He further admitted that Sudama has built his house in Bahadurpur and carries on a shop, members of his family live in that house and this was the state for the last 10-12 years as was stated by Jagannath Tiwari (P.W.1). P.W.2 Jagdish Prasad admitted that Beni Madhav has sent his son to his inlaw's house where he was brought up. This seems natural also because in the will it was recited that the wife of Beni Madhav had pre-deceased him a little earlier and Sudama was hardly of 3-4 years at the time when the will was executed. His brothers were hostile to him. Under such circumstances he had possibly no alternative except to send his minor son Sudama to his in-law’s for the purposes of bringing him up as stated by Jagdish Prasad (P.W.2). According to him, Sudama left his house of maternal grand father and maternal uncle and he settled down in Bahadurpur where he is living in a well built house and living with his family. Even Sudama (P.W.3) has not disputed all these facts. According to him, Sudama left his house of maternal grand father and maternal uncle and he settled down in Bahadurpur where he is living in a well built house and living with his family. Even Sudama (P.W.3) has not disputed all these facts. He too admitted that he was brought by his maternal grand-father and maternal uncle. There are certain other facts which have to be spelled. Beni Madhav died in the year 1959. The plaintiff does not appear to have taken interest in getting his name mutated in the revenue record over the disputed houses. He made no attempt into actual physical possession over the disputed houses. Regarding dealing with the properties it may be pointed out that the defendants first set sold the entire house no.4 on 21.12.1963 in favour of Radha Kishun and the vendee of Radha Kishun is alleged to be in possession as alleged in the entire house no.4. To get away these difficulties the plaintiff has suggested a private partition in such a manner in which he has got no interest in house no.4 and in lieu thereof his 1/3rd share in house nos.2 and 3 was enhanced to 4/9 and 4/9 of list B. During the pendency of the suit the defendants 1, 9 and 10 also sold the entire house no.3 on 15.10.1981 in favour of defendant no.19 Smt. Shanti Devi. In this the plaintiff also sold subsequently his 1/3rd share in house no.3 in favour of Kashi Nath defendant no.20. Regarding house no.1 only the plaintiff claims specific his 1/3rd share. A suit for ejectment of tenant Ravail Singh has been filed which was subsequently dismissed on account of non-prosecution. But Ravail Singh himself has denied title of the plaintiff's father and instead he has asserted therein that he was a tenant of deceased Chhote Lal. It would appear from the above proved facts and circumstances and the dealing of the property by different parties that the plaintiff was taken away by his maternal grand father to bring him up. After the death of Beni Madhav he was brought up there by his maternal grand father and subsequently after his death, by his maternal uncle, that the plaintiff was actually out of physical possession over the disputed properties and he was not actually living therein. After the death of Beni Madhav he was brought up there by his maternal grand father and subsequently after his death, by his maternal uncle, that the plaintiff was actually out of physical possession over the disputed properties and he was not actually living therein. He has built his own house at Bahadurpur where he was living with his family members and carrying on a small shop there. These circumstances are against the plaintiff and they clearly point out that he has never been in possession over any property in the dispute. But he is undoubtedly one of the owners of the disputed house being the son of Beni Madhav and he has /3rd share in each of the houses. His plea of private partition has been held to be not established. The dealing with the property shows that house no.4 was sold by the defendants first set as early as in 1963, when there was no dispute. During the pendency of the suit, sale deed of house o.3 has been executed by Chhote Lal and Smt. Tulsi Devi defendant no.10 in favour of Smt. Shanti Devi, defendant no.19. The plaintiff has matched them by executing the sale-deed of 1/3rd share in the house no.3 in favour of defendant no.20. Now the question is whether the plea of adverse possession as raised by the defendants can be held to have been established. In view of these proved facts and circumstances and other evidence on record. It is settled law that there can be adverse possession of the property which belongs to a minor during the continuance of his minority. Of course a question has to be examined in each case individually with regard to the interior relationship between the parties taking possession and with the minor and when under any circumstances existed which would entitle the court that the person who entered into possession did so. Under the circumstances, which would in law make him only a agent or bailiff of the minor vide A.I.R. 1945 Bombay 63, Rajchappa Totappa and another versus Madibalawa Rachappa. In A.I.R. 1945 Nagpur 357 Seth Narain Bhai Ichha Ram Kurmi and another v. Narvda Prasad Sheo Sahi Pandey, it has been observed that minority does not prevent ouster and does not stop commencement or running of adverse possession. In A.I.R. 1945 Nagpur 357 Seth Narain Bhai Ichha Ram Kurmi and another v. Narvda Prasad Sheo Sahi Pandey, it has been observed that minority does not prevent ouster and does not stop commencement or running of adverse possession. The only privilege which a minor gets in law is another three years' extension after attaining the majority for filing a suit. The concept of possession as understood in law need not include actual obligation. It compr rather the right to possession in the right and each one to exclude others from possession and control coupled with a mental elements viz. the animus possidendi, i.e. to say in knowledge of these rights and the desire and intention of exercising them if need be obviously a minor is incapable of having animus possidendi and of exercising legal rights of ownership they were exercised on his behalf by others and the question always remains whether they were so exercised or not. If they were, then whether the minor was in occupation or not, would be immaterial. The adverse possession in law does not necessarily denote actual physical ouster from occupation to an ouster from all those rights which constitutes possession in law. Usually physical occupation is the best and most conclusive proof of possession in this sense yet the two are not the same. Although there must by physical ouster from these rights but that does not necessarily import physical ouster from occupation. The nature of ouster and the quantum necessarily would very in each case. Similar view has been expressed in he case of Vibhuti Bhushan Modak and others v. Girish Chandra Pal and others reported in A.I.R.1950-Patna Page 191. In 1948-A.I.R. Nagpur 2583, Mst. Malti Bai and others v. Waman Rao Sheo Ram and others, it has been held that there could be adverse possession against minor. The same view has been taken in A.I.R. 1978 Madras-Page 51 Chinnaih Kownader v. Katayya Kownader. This suit was filed by the plaintiff' on 2.2.1972 as an indigent person as he was minor. After that question was decided it was registered as suit no.95/1974. For all practical purposes of suit, the suit is deemed to have been filed well within time on 2.2.1972. It is not concern with the question whether the plaintiff's suit has been filed within time or not. After that question was decided it was registered as suit no.95/1974. For all practical purposes of suit, the suit is deemed to have been filed well within time on 2.2.1972. It is not concern with the question whether the plaintiff's suit has been filed within time or not. For the present we have to consider whether the plaintiff's title to the property has come to an end on account of adverse possession of the defendants as has been registered by the defendants. It has already been referred to earlier that the will was executed by Beni Madhav on 5.11.1957. This fact has already been brought up by the defendants evidence on record and circumstances that the relations between Beni Madhav and his brothers were not cordial. But on the contrary they declare hostile. Beni Madhav himself anticipated all troubles for his minor son and although it is not disclosed in the will itself it could be easily interpreted that he suspected bonafides of his brothers and was apprehensive of the fact that after his death, his minor son would not be allowed to enjoy the ancestral properties. Consequently, he thought the necessity of executing the will within two years of the execution of the will Beni Madhav died. After 17 years in 1972 this suit was filed as an indigent person. Sudama was around about 3 years when the will was executed. His mother had died a little earlier. It was on account of this young age of the plaintiff that his father had made provision in the will regarding his bringing up. It was to be done at the hands of the plaintiff's maternal grand-father and after his death his maternal uncle and that was actually the case also. The plaintiff's maternal uncle has acted as his best friend in the plaint and filed the suit in 1972. There can be no escape from the interference that after the death of Beni Madho, the plaintiff has been taken away from the ancestral house where Beni Madhav was living and he was brought up by his Nana (maternal grand-father). It is also in evidence that afterwards the plaintiff built his house in Bahadurpur where he was settled with the members of his family. It is also in evidence that afterwards the plaintiff built his house in Bahadurpur where he was settled with the members of his family. Under such circumstances it can be easily interpreted that after the death of Beni Madhav the plaintiff' was not allowed to live in the disputed house by his uncle and other co-laterals of his father. The plaintiff's title, however, to the disputed property has been established because he has been proved to be the son of Beni Madhav, and thus entitled to 1/3rd share in each item of the disputed property. The circumstances clearly indicate that the other co laterals of Beni Madhav acted against the interest of the plaintiff so as to denied his right to possess the house. As the plaintiff himself was a minor, he was incapable of having animus possidendi and deciding legal rights of ownership. Naturally, they ought to be exercised on his behalf by others and in such a situation the question always remains open whether they were exercising at all or not. If they were exercised then whether the minor was in occupation or not, would be immaterial. Same was the case if the property of the minor remains free from nobody's possession because in such a situation law will include possession to the rightful owner. If, however, another person enters over the property of extra animus and creates a situation which result in ouster of minor from occupation as well as in possession and he sets his adverse title then the plea of adverse possession would be successful against the minor's property and at the time of bringing him. Applying to these, the present facts and circumstances, it would appear that after the death of Beni Madhav, the plaintiff was never allowed entry over the disputed house by his co-laterals of deceased Beni Madhav. Nobody exercised animus possidendi on his behalf because his maternal grand-father and his Mama (maternal uncle) who had acted as guardian to bringing him up did not take any step prior to 2.2.1972. During the long gap of more than 12 years that intervened between the death of the plaintiff's father in 1959 and the filing of the suit as an indigent person on 2.2.1972, which is more than 12 years, the plaintiff's guardian did not seem to have taken any step to assert animus possidendi on his behalf. During the long gap of more than 12 years that intervened between the death of the plaintiff's father in 1959 and the filing of the suit as an indigent person on 2.2.1972, which is more than 12 years, the plaintiff's guardian did not seem to have taken any step to assert animus possidendi on his behalf. House No.4 was actually transferred in the year 1963 in it's entirety by two branches only to the exclusion of the plaintiff. The effort of the plaintiff to explain away this fact by stating that there was a private partition under which he did not get any share in this house instead got excessive share in house nos. 2 and 3 has fallen down. Subsequently dealings further show that the remaining branches deemed that the properties were exclusively as if treating them as if belonged to those two branches and totally excluding the plaintiff. No attempt appears to have been made on behalf of the plaintiff for mutation of his names or to take other steps to suggest that animus possidendi was ever exercised on his behalf. Under such circumstances the steps taken during the pendency of the suit after the lapse of twelve years whereby title extinguished would be of no avail. Under such circumstances it is held that the plea of adverse possession has been established successfully by the defendants against the plaintiff. The defendants witness had also performed that inference. It is accordingly held that the suit is not barred by time, but the plaintiff's title to the disputed property has been lost on account of the adverse possession of the defendants. The issue is answered accordingly”. 38. From the findings recorded by the trial court, it is evident that it is only during the course of argument, the submissions of adverse possession was made by the defendant-respondent/cross-objector. Admittedly, neither there was any specific pleading before the trial court nor any issue on adverse possession was framed. 39. Undisputedly, Beni Madhav, father of the plaintiff-appellant died in he year 1959, when the plaintiff-appellant was about 3 years old. The mother of the plaintiff-appellant had died earlier. Thus, there was none in the family to take care of the plaintiff-appellant after the death of his father Beni Madhav. 39. Undisputedly, Beni Madhav, father of the plaintiff-appellant died in he year 1959, when the plaintiff-appellant was about 3 years old. The mother of the plaintiff-appellant had died earlier. Thus, there was none in the family to take care of the plaintiff-appellant after the death of his father Beni Madhav. According to the findings of the trial court, the plaintiff'-appellant was brought up after the death of his father Beni Madhav by his maternal grand father and subsequently, by his maternal uncle. Thereafter, the plaintiff-appellant built up his own house at Bahadurpur where he started living with his family members and is carrying on a small shop. This circumstance has been treated by the trial court to be an evidence of adverse possession of the defendant-respondent over the disputed property. The defendant-respondent completely failed to lead any evidence to establish 'ouster' as per principles of law settled by Hon'ble Supreme Court in the judgments discussed above in paragraph Nos. 24 to 35. The suit was initially instituted by the plaintiff-appellant as an indigent person in the year 1972, through his next friend and maternal uncle Sri Chhote. Neither any specific pleading was made by the defendant-respondent/cross objector before the trial court regarding adverse possession as per settled legal position discussed above nor any evidence whatsoever could be led by them to establish the exclusive long and uninterrupted possession and enjoyment of the disputed property by them to the knowledge of the plaintiff-appellant and exercise of right of exclusive ownership openly and to the knowledge of the plaintiff-appellant and declaration of hostile animus, so as to constitute 'ouster'. Therefore, the finding of adverse possession of the defendant-respondent/cross-objector recorded by the court below in respect to the disputed property is perverse and based on no evidence. Consequently, the finding of adverse possession cannot be sustained and is, therefore, set-aside. 40. In result, both the appeals succeed and are hereby allowed to the extent indicated above. The impugned judgment and decree to the extent of the finding of adverse possession of the defendant-respondent/cross-objector over the disputed property, is hereby set aside. The cross objection of the defendant-respondent/cross-objector is dismissed with costs. 40. In result, both the appeals succeed and are hereby allowed to the extent indicated above. The impugned judgment and decree to the extent of the finding of adverse possession of the defendant-respondent/cross-objector over the disputed property, is hereby set aside. The cross objection of the defendant-respondent/cross-objector is dismissed with costs. The matter is remitted back to the trial court for making partition of 1/3rd share of the plaintiff-appellant in the disputed property in accordance with law, expeditiously, preferably within six months from the date of presentation of a certified copy of this judgment, without granting any unnecessary adjournments to either of the parties.