Legal heirs are entitled to claim shares as per inheritance laws, and mere possession does not confer title without clear evidence.

ORAL JUDGMENT:

1. This appeal is filed to challenge the judgment and decree of Regular Civil Appeal No. 303 of 2004 which was pending in the Court of 2nd Adhoc Additional District Judge, Aurangabad. The first Appellate Court has set aside the judgment and decree of dismissal of Regular Civil Suit No. 839 of 2002 which was filed by present Respondents for relief of partition and possession of their share from land Gat No.111 (Old Survey No.35/1/2) situated at Loni, Tahsil Khultaba, District Aurangabad. The total area of this land is 87 Are and it is the case of the plaintiffs that they have ½ share in this land. Such share is given by the first Appellate Court. Both the sides are heard.

2. The appeal was admitted on following points and they were considered as substantial questions of law:

(i) Whether on the facts and in the circumstances of the present case, the plaintiffs are entitled to claim share in the suit property as legal heirs of deceased Tarabi and if yes, to what extent?

(ii) Whether on the facts and in the circumstances of the present case, the defendants have proved ouster of the plaintiffs in respect of the suit properties and have established plea of adverse possession, whereby they claimed to have perfected title by prescription?”

3. It is the case of the plaintiffs that one Shaikh Sardar was the common ancestor of plaintiffs and defendant and he was survived by a widow and 2 sons. It is contended that defendant No.1 Shaikh Gulab is a son of widow Tarabee and Shaikh Lal, the predecessor in title of plaintiffs was a son of the first wife of Shaikh Sardar. It is contended that after the death of Shaikh Sardar, Tarabee started living with defendant No.1 and the names of both Shaikh Gulab and Shaikh Lal were entered in the revenue record of the aforesaid property. It is contended that after year 1978-79 the name of defendant Shaikh Gulab came to be entered in the crop cultivation column as he was allowed to cultivate the land. It is contended that he misused his position and he got entered his name as the owner of entire area when consolidation scheme was implemented and Gat No.111 was formed. It is contended that though the name of defendant Shaikh Gulab was entered, he did not become owner and Shaikh Lal continued to own ½ portion of this land.

4. It is the case of the plaintiff that behind the back of plaintiffs the names of successors of Shaikh Gulab were entered in the revenue record of this land by showing false partition amongst them. It is contended that plaintiffs realised about this mischief first time in the year 1989 when they saw the revenue record. In the suit filed on 30th August, 2002 they claimed the aforesaid relief.

5. Defendants filed joint written statement and contested the matter. They admitted the relationship of plaintiffs with them. They contended that there was oral partition and in the partition entire Survey No.35/1/2 was given to the share of Tarabee. It is contended that Tarabee died in the year 1987-88 and before her death she had given the land to her son Shaikh Gulab and so the land was entered in the name of Shaikh Gulab. It is contended that Shaikh Lal had given consent to Tarabee for giving the land to Shaikh Gulab.

6. The defendants contended that the suit is barred by law of limitation. It is contended that partition was effected in the year 1965 and since then the property was standing in the name of Tarabee and Tarabee gave the land to defendants and the defendants have been enjoying this land as the owner.

7. On the basis of aforesaid pleadings issues were framed. The evidence of plaintiff N