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CASE NO.:

Appeal (civil) 5 of 1992

PETITIONER:

DARSHAN SINGH & ORS.

Vs.

RESPONDENT:

GUJJAR SINGH (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT: 08/01/2002

BENCH:

V.N. Khare & S.N. Phukan

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.55/95.

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.

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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.

The first question, which needs our consideration, is

whether plaintiff, Gujar 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 regardin