Adverse possession requires the pleading and proof of ouster, and all legal requirements must be fulfilled to establish a claim of adverse possession.

JUDGMENT :

D. DASH, J.

1. The Appellant (Since Dead), by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) had assailed the judgment and preliminary decree dated 22.06.2002 and 27.06.2002 respectively passed by the learned District Judge, Bhadrak in T.A. No. 13 of 1989.

It may be stated here that during pendency of the Appeal, the Appellant (Defendant No. 13 before the Trial Court and Appellant No. 7 before the First Appellate Court), having died, his legal representatives have come on record and are pursuing this Appeal.

The mother of the Respondent Nos. 1 and 2 with her sister who is the mother of Respondent No. 3 had filed the suit for partition, correction of the major settlement record of right and mesne profit. They had claimed 1/12 share each out of the suit properties measuring Ac. 0.50 decimals. The suit having been preliminarily decreed the present Appellant (Defendant No. 13) and others had filed the Appeal under Section 96 of the Code which too has been dismissed.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. The Plaintiff’s case is that one Gangadhar Mohanty was the recorded owner in respect of the suit properties. He died in the year 1942 leaving behind his widow Tira and two sons namely, Mayadhar and Gayadhar who are Defendant Nos. 2 and 3. After the death of Gangadhar, Tira inherited with her two sons inherited 1/3rd share each. As per the law prevailing at that time Tira’s interest was limited. Tira died in the year 1978 which is long after the coming in the force of the Hindu Succession Act, 1956 (for short called as the H.S. Act). So the limited interest that Tira was having when she succeeded to the property on the death of her husband matured to absolute after the H.S. came into force. On her death, her 1/3rd share devolved upon her Class-1 heirs who are her sons i.e. Defendant Nos. 2 and 3 and two daughters namely, Jani @ Jana and Jadi who are the Plaintiffs, whose legal representatives are now on record.

It is stated that there was mutual partition in respect of all the properties except the suit properties. The Plaintiffs, however, came to know subsequently that Defendant No. 3 who had 1/3rd share in the suit land has mortgaged scheduled land measuring Ac. 01.10 decimal to Defendant No. 1 and he on the basis of the mortgaged deed filed the mortgaged suit without impleading all the heirs of Gangadhar especially Tira and on the basis of the mortgaged decree, the Defendant No. 1 got the said mortgaged land put to sale. It is stated that there has been purchase of the mortgaged land by the Defendant No. 1 in the Court sale. The Defendant No. 1 even though took half of “Ga” scheduled land yet in the Major Settlement record he got the full plot recorded in his name and in the name of Defendant Nos. 4 to 6. Over and above the same, the Defendant Nos. 7 to 9 claim to have purchased half share from Defendant No. 3 out of the suit land. The Plaintiff’s in the suit claim that they have got 1/2 share each and the suit being liable to be partitioned in metes and bounds, the same be so ordered.

4. The Defendant No. 1 in his written statement stated that the death of the father of the Plaintiff was not in the 1942 and Tira, the mother of the Plaintiff’s had no share and she also did not die in the year 1978. It is further stated that original Defendant No. 1 took mortgage of Ac. 01.10 decimal of land from C.S. Khata No. 188 and filed a mortgaged suit bearing No. 7 of 1967. Having obtained a mortgaged decree for sale this property was put to sale and he purchased the same and took the delivery of possession and accordingly in the Major Settlement record of right got the land recorded in his name. It is stated that he has been possessing the same for more than 12 years and as such he has acquired title by virtue of such long possession. It is specif