The suit is maintainable without a general partition. Exclusive possession by a co-sharer does not amount to ouster of other co-sharers. Adverse possession needs to be properly examined.

JUDGMENT :

S.K. Ray, J. - Defendants 2 to 7 and a-Ka have filed this appeal from the confirming decision dated 17-11-1964 of Sri K.N. Sarkar, additional subordinate Judge, Balasore, passed in Munsif Appeal No. 39/11 of 1962.

2. One Sadananda Mohapatra died in or about 1911, leaving four sons, viz., Banchhanidhi Shayama Charan, Dheneswar and Damodar Naik. Shortly after the death of Sadananda, his four sons divided in mess and residence and separately possessed different portions of their property, without partitioning them by metes and bound. This amicable separation and possession continued. Thereafter different co-sharers acquired fresh properties. Ka and Ga Soh. lands are the ancestral properties. Soh. Kha lands were jointly acquired by Banchhanidhi and Shayama Charan. Banchhanidhi, the Plaintiff, alleges that he has 1/4th share in Schedules Ka and Ga. and a half share in Kha Soh. lands, and was possessing portions of these lands which are shown in red colour in the rough sketch map appended to the plaint, and Defendant-1 surreptitiously and fraudulently got recorded these lands in his name in the current settlement, and be having found it out, has filed the suit for a declaration that he has got 1/4th share in Schedule Ka and Ga, and a half share in Schedule Kha properties, and for confirmation of his joint possession of Ka and Ga Schedule. along with Defendants-1 to 11, and for confirmation of his joint possession of Kha Schedule. property along with Defendant-1, and for appropriate injunction against Defendants-1 to 11 restraining them from interfering with his title and possession of the plaint Sch. lands.

3. The original Plaintiff was Banchhanidhi. He having died, his son has been substituted as Plaintiff. Shyama Charan was the original Defendant-1 whose heirs also, upon his death, have been substituted. Defendants 10 and 11 are the sons of Dhaneswar, the third son of Sadananda and Defendant 9 is the son of late Damodar, 4th son of Sadananda. Defendants 2 to 4 are the Bons and Defendants 5 to a are the grandsons of late Defendant-1. Defendants 9 to 11 are the alleged co-sharers of Schedule Ka and Go. properties. Defendants 12 to 25 are the pro forma Defendants.

4. Defendants 1 to 7 filed one set of written statement. Defendants 4-Ka and 4-Kha have filed another set and the minor Defendants, 18, 19, 23 and 24 appearing through their pleader guardian, pleaded that the Plaintiff should prove his case. The other Defendants remained ex parte.

5. The substantial defence of the Defendants is that Sadananda died in 1904 leaving four sons. There was separation in mess and status among the members of the joint family in 1908. Before such separation many properties had been acquired for the family mostly in the name of the Plaintiff and his sons and some properties were indiscriminately recorded in the name of the co-sharers in the revision settlement. These properties had been acquired from the joint family contract business. At the time of such separation in mess and residence each and every item of the family property had been divided but it was mutually agreed that they were to possess the lands amicably, roughly in accordance with their shares. Accordingly, the co-sharers are possessing the lands since 1919 exclusively and the current settlement record of rights have been made in accordance with such partition. In the said partition of 1919, the entire suit land had fallen to the share of Defendant-1, and are in his exclusive Khas possession for more than 12 years. In other words, Defendant-1 had acquired title to the suit lands by adverse possession.

The second defence was that the Emit is not maintainable in its present form without bringing a suit for general partition.

6. The trial Court held that there was no previous partition as claimed by the Defendants and the Defendants had acquired no title by adverse possession. The suit, in its present form, is maintainable. The shares claimed by the Plaintiff are correct except in resp