IMPORTANT POINT
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.

Headnote:(i) Evidence Act, 1872-Sections 107 and 108-Burden of proof regarding death of a person-Plaintiff claiming succession to the estate of one Jagjit Singh being dead-Burden lies on plaintiff regarding proof of date of death of Jagjit Singh-High Court holding that as Jagjit Singh was not heard for more than 7 years, therefore, the date of filing of the present suit would be considered as date of death of Jagjit Singh-Whether maintainable in law? (No).
       Held : The first question, which needs our consideration, is whether plaintiff, Gujjar Singh, a sixth-degree collateral of Jagjit Singh could prove his right to inherit land of Jagjit Singh. The first appellate court as well as the High Court held that in the eye of law, Jagjit Singh, who was not being heard for more than 7 years, could be considered to be "dead only on the date on which the present suit was filed". It was also held that the burden of proof regarding the date of death of Jagjit Singh was on the appellants, which could not be discharged. In Sri Vidya Mandir Education Society (Regd.) v. Malleswaram Sangeetha Sabha & Ors. (1995 Supp. 1 SCC 27), this Court considered provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and Anr. (AIR 1926 PC 9) held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that fact is essential. The case in hand as plaintiff claimed succession to the estate of Jagjit Singh, and therefore, the burden was on him to prove the date of death. There is neither any pleading nor an averment by the plaintiff-respondent regarding date of death of Jagjit Singh. The view of the High Court that as Jagjit Singh was not heard for more than 7 years and, therefore, the date of filing of the present suit would be considered as date of death of Jagjit Singh is contrary to above provisions of law. In view of the settled position of law, the succession of plaintiff-Gujjar Singh to the estate of Jagjit Singh would open only on the death of Jagjit Singh. As plaintiff-Gujjar Singh could not prove the date of death of Jagjit Singh, therefore, his succession to his estate did not open on the date of filing of the suit. We, therefore, hold that the above findings of the appellate courts are not sustainable in law. (Paras 4, 5 and 6)
       (ii) Limitation Act, 1963-Adverse possession of co-sharer-Legal position -Whether applies to present case? (Yes)-Appeal allowed.
       Held : 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. After the death of Hira Singh, one collateral - Smt. Har Kaur got her name mutated and took possession, which was questioned by Rulia Singh. Both the parties were litigating and ultimately the court decided in favour of Rulia Singh, who got possession of the land and his name was mutated in the revenue records. After the death of Rulia Singh, his grandsons - the present appellants, also got their names mutated which was challenged unsuccessfully by the plaintiff. Thus, it is proved that present appellants got their names mutated after denying the title of co-laterals of Jagjit Singh, including the present appellant. On these facts, we hold that as names of present appellants were mutated in the revenue record after rejecting the claims of plaintiff and other co-laterals, there was a clear ouster of other co-sharers of Jagjit Singh. From the judgment of the trial Court, we find that Rulia Singh mortgaged a part of the land and sold some part treating himself as the owner. On the facts proved in the case in hand, we are of the view that the appellants have proved that their possession of the land in question is in continuity for more than the statutory period, in publicity and adverse to the Jagjit Singh and his other collaterals and they have perfected their title over the land by adverse possession. We, therefore, find merit in the present appeal and accordingly it is allowed by setting aside the impugned judgment and the judgment of the trial court is restored. Consequently, suit filed by the plaintiff is dismissed. We direct the parties to bear their own costs. (Paras 9, 10, 11, 12 and 13)

JUDGMENT

Phukan, J.-This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana in Letters Patent Appeal No. 551/75.

2. Briefly stated, the facts are as follows :

Two brothers, Hira Singh and Jagjit Singh were convicted in a murder case. During their confinement in jail, Jagjit Singh absconded and Hira Singh was granted pardon. After release Hira Singh took possession of the entire land including the share of his brother, Jagjit Singh. Hira Singh died sometime in the year 1920 and on his death, one Smt. Har Kaur, wife of a collateral took possession of the land. Rulia Singh, the adopted son of Hira Singh questioned the mutation as well as possession of Har Kaur and, therefore, she filed a suit for declaration that Rulia Singh was not validly adopted by Hira Singh and also sought permanent injunction restraining Rulia Singh from interfering with her possession. The suit was dismissed ultimately by the High Court and the land including the share of the Jagjit Singh was mutated in the revenue records in the name of Rulia Singh in 1930 and thereafter he remained in undisturbed possession of the land till his death in 1962. Darshan Singh, Ala Singh and Pritam Singh - defendant Nos. 1-3 (appellants in the appeal) - grandsons of Rulia Singh through his daughter got their names mutated in respect of the land including the share of Jagjit Singh. One Gujjar Singh - a sixth-degree collateral of Jagjit Singh challenged the mutation unsuccessfully and thereafter filed the present suit claiming a declaratory decree to the effect that being a collateral of Hira Singh and Jagjit Singh, he was entitled to succeed to the land left behind by them. The suit was dismissed by the trial Court. The first appellate court partly allowed the appeal granting a decree in favour of Gujjar Singh only in respect of land of Jagjit Singh, which was affirmed by the High Court in second appeal. In the present Letters Patent Appeal, decree of the appellate court was upheld with modification to the extent that the land of Jagjit Singh was divided between the plaintiff-Gujjar Singh and other collaterals, who were impleaded as respondent Nos. 2-7. Against the said judgment, the parties are before us in this appeal.

3. All the courts below have held that Rulia Singh was adopted by Hira Singh according to the customary law of Punjab and, therefore, he could under the said custom inherit only the properties of Hira Singh and not the properties of Jagjit Singh, collateral of Hira Singh. On this point there is no dispute. The trial Court dismissed the suit holding that Rulia Singh and thereafter his successors, the appellants were in adverse possession of the suit land. The first appellate court held that according customary law, Rulia Singh being adopted son of Hira Singh, was entitled to inherit the share of Hira Singh but not of Jagjit Singh and the plea of adverse possession set up by the appellants over the land of Jagjit Singh was rejected. As stated earlier, the judgment of the first appellate court was upheld by the High Court with modification and accordingly appeal was partly allowed.

4. The first question, which needs our consideration, is whether plaintiff, Gujjar Singh, a sixth-degree collateral of Jagjit Singh could prove his right to inherit land of Jagjit Singh. The first appellate court as well as the High Court held that in the eye of law, Jagjit Singh, who was not being heard for more than 7 years, could be considered to be "dead only on the date on which the present suit was filed". It was also held that the burden of proof regarding the date of death of Jagjit Singh was on the appellants, which could not be discharged.

5. In Sri Vidya Mandir Education Society (Regd.) v. Malleswaram Sangeetha Sabha & Ors. (1995 Supp. 1 SCC 27), this Court considered provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and Anr. (AIR 1926

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2002 Supreme(SC) 18

IMPORTANT POINTIf 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.

Cases Referred (2)

IMPORTANT POINT
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.