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Sunday, October 2, 2016

It is well settled that 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. 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.

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.

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 regarding the
date of death of Jagjit Singh was on the appellants, which could not
be discharged.

In Sri Vidya Mandir Education Society (Regd.) versus
Malleswaram Sangeetha Sabha and Others [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 versus Mahant Ramrup Gir and Another [AIR
1926 Privy Council 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-Gujar 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.

The next question which requires our decision is whether
Rulia Singh and after his death the present appellants, who were in
possession of the land since 1930 and also got their names mutated,
have perfected their title by adverse possession over the land of
Jagjit Singh. It is well settled that 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.

Learned counsel appearing for the appellants has placed
reliance on the decision of the Lahore High Court in  Sardar Amar
Singh versus Sardarni Shiv Datt Kaur  (AIR 1937 Lahore 890). The
learned Judge held that removal of the name of the absentee co-
sharer from revenue records at the instance of other co-sharers is an
overt act amounting to ouster and commences adverse possession of
the co-sharers in possession, the reason being that removal of the
name was done openly and if the absentee co-sharers would have
taken an interest in the land, he would not have failed to notice of it in
the ordinary course and hence his knowledge of the adverse claim for
other co-sharer may be reasonably presumed.  In reply, learned
counsel for the respondents has placed reliance on a decision in
Bashir Ahmad & Ors. versus Parshottam & Ors. (AIR 1929 Oudh
337).  The learned Single Judge held that if a property belongs to
several co-sharers and one co-sharer is in possession of the entire
property, his possession cannot be deemed to be adverse to other
co-sharers and he must be deemed to be in possession on behalf of
all other co-sharers and adverse possession cannot be founded on
the basis of such exclusive possession, unless there has been ouster
of other co-sharers.  Regarding mutation in the revenue record
learned Judge held that mutation in the name of one co-sharer
cannot be any indication of adverse possession until it is shown that it
was obtained after a clear declaration to the effect that title of other
co-sharers was denied.

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.

J.
[V.N. Khare]

J.
[S. N. Phukan]

New Delhi,
January 08, 2002




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