Holding

A co‑sharer's possession is not adverse to other co‑sharers unless there is a clear ouster, and the date of death cannot be presumed under Section 108; the plaintiff failed to prove death and thus could not succeed, while the appellants' possession amounted to adverse possession.

Summary

The Supreme Court examined a suit by Gujjar Singh, a sixth‑degree collateral of Jagjit Singh, seeking declaration of his right to succeed to Jagjit Singh's land. The trial court had dismissed the suit on the ground that the appellants (descendants of Rulia Singh) were in adverse possession, but the appellate courts reversed in part, presuming Jagjit Singh dead on the date of filing after seven years of silence. The Court held that a co‑sharer's possession is not adverse to other co‑sharers unless there is a clear ouster, and that Section 108 of the Evidence Act does not allow a presumption of the exact date of death; the burden lies on the claimant. It was found that the appellants had obtained a clear ouster by mutating the revenue records after denying the collaterals' title, thereby perfecting title by adverse possession. Consequently, the plaintiff failed to prove Jagjit Singh's death and could not claim succession, leading the Court to set aside the appellate judgments, restore the trial court decision, and dismiss the suit.

Issues considered

Whether possession of a co‑sharer of a jointly owned property can be deemed adverse in respect of other co‑sharers absent a clear ouster.
Whether Section 108 of the Evidence Act permits a presumption of the exact date of death after a period of silence.
Whether the burden of proving the date of death rests on the claimant seeking succession.
Whether mutation of revenue records after denying another's title constitutes an ouster sufficient for adverse possession.

Legislation cited

Indian Evidence Act, 1872s. 108

Subjects

successioninheritancecollateraladverse possessionco‑sharerpresumption of deathburden of proofmutationlandproperty law

Judgment

f-

-'f· DARSHAN SINGH AND ORS. A
v.
GUJJAR SINGH (DEAD) BY LRS. AND ORS.

JANUARY 8, 2002

[V.N. KHARE AND S.N. PHUKAN, JJ.] B

Succession-Right of inheritence-Land of two brOrs. in possession of
descendants of one brother-Suit by collateral claiming succession to the
land-Other brother not heard for 7 years-Date of his death not proved- C
Descendants got their names mutated after denying the title of collaterals-
Suit rejected by Trial Court on the ground of adverse possession-First
Appellate Court and High Court granted decree to the extent of estate of the
other brother presuming his death on the date of filing of the suit-On
appeal-Held, collaterals not entitled to succeed since the descendants had
perfected their title after ousting the title of the collaterals and collaterals D
could not prove the date of death-Adverse Possession.

Adverse Possession-Applicability of-On land in possession of co-
sharer-Held, the possession cannot be deemed to be adverse in respect of
other co-sharers unless they have been ousted by denying their title.
E
Evidence Act, 1872-Section 108.

Death of a person-Claim of-Burden to prove-Is on the person who
makes such a claim.

Presumption as to death-Exact date of death cannot be presumed-- F
High Court presuming it to be on the date offiling of suit-Contrary to law.

'H' was in possession of the suit land which included share of his brother
since he absconded. After death of 'H', wife of a collateral took possession of
the land and got it mutated in her name, which was questioned by the adopted
son of 'H'. In litigation between the adopted son and the wife of collateral, G
court decided in favour of the son and the entire land was mutated in his name.
After his death, appellants, his grand sons got their names mutated in respect
of entire land. Respondent No. I, a sixth degree collateral of the other brother
challenged the mutation unsuccessfully.
91 H
92 SUPREME COURT REPORTS [2002] l S.C.R.

A Thereafter Respondent No. I filed present suit for declaration that he
was entitled to succeed to the land being collateral of 'H' and his brother.
There was no pleading or averment regarding death of the brother. Trial
Court dismissed the suitholding that the adopted son and his successors
were in adverse possession of the land. On appeal, the First Appellate Court
granted decree in favour of respondent only in respect of land of the brother
B holding that the adopted son was entitled to inherit only the land of 'H'; and
that since the brother had not been heard for more than 7 years, could be
considered to be dead on the date on which the suit was filed ; and the plea
of adverse possession was rejected. High Court upheld the decision of the
'
First Appellate Court. In Letters Patent Appeal High Court upheld the
C decree with modification that the land of the brother would be divided between
Respondent No. I and Respondent Nos. 2 to 7 (other collaterals). Hence this
appeal

Allowing the appeal, the Court

D HELD: 1.1. lfa 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. Possession of a property belonging
to several co-sharers by one-sharer shall be deemed that he possesses 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
E 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.
196-B-D)
I

Sardar Amar Singh v. Sardarni Shiv Datt Kaur, AIR (1937) Lahore
890 and Bashir Ahmad and Ors, v. Parshottam & Ors., AIR (1929) Oudh 337,
F referred to.

1.2. On the facts in the case in hand, the appellants have proved that
their possession of the land in question is in continuity for more than the
statu.tory period, in publicity and adverse to the brother and his other
collaterals and they have perfected their title over the land by adverse
G possession. It is proved that present appellants got their names mutated after
denying the title of collaterals of the brother, including the present appellant.
On these facts, it is held that as names of present appellants were mutated
in the revenue record after rejecting the claims of plaintiff and other
collaterals, there was a clear ouster of other co-sharers of the brother.
H [96-H; 97-AI
DARSHAN SINGH v. GUJJAR SINGH [PHUKAN, J.] 93
2.1. There is no presumption of exact time of death under Section 108 A
of the Evidence Act, 1872 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. In the case in hand as respondent No. 1 claimed succession to the
estate of the brother 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 his date of death. The view that as the brother was not B
heard for more than 7 years and, therefore, the date of filling of the present
suit would be considered as date of the death of the brother is contrary to
above provision oflaw. 195-C-D)

Lal Chand Marwari v. Mahant Ramrup Girand Anr. AIR (1926) Privy C
Council 9, referred to.

2.2. The succession of respondent No. 1 to the estate of the brother would
open only on his death. As respondent No. 1 could not prove the date of his
death, therefore, his succession to his estate did not open on the date of filing
of the suit. Therefore, the findings of the appellate courts are not sustainable D
in law. [95-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 of 1992.

From the Judgment and Order dated 25.7.79 of the Punjab and Haryana
High Court in L.P.A. No. 551 of 1975. E
A.K. Goel, Ms. Sheela Goel and P.N. Puri for the Appellants.

A.O. Sikri, Harphool Singh and Sudhir Walia for M.S. Dahiya for the
Respondents.
F
The Judgment of the Court was delivered by

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.
G
Briefly stated, the facts are as follows:

Two brOrs., Hira Singh and Jagjit Singh were convicted in a murder
case. During their confinement in jail, Jagj it 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 H
94 SUPREME COURT REPORTS [2002] 1 S.C.R.

A 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
B 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 S!ngh 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
C land including the share of Jagjit Singh. One Guijar 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 Guijar
D 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-Guijar Singh and other collaterals,
who were impleaded as respondent Nos. 2-7. Against the said judgment, the
E 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
F 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 to 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
G 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,
Guijar Singh, a sixth-degree collateral of Jagjit Singh could prove his right to
H inherit land of Jagjit Singh. The First Appellate Court as well as the High
DARSHAN SINGH v. GUJJAR SINGH [PHUKAN, J.] 95

A

}
- 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.

·~ Jn Sri Vidya Mandir Education.Society (Regd.) v. Malleswaram B
Sangeetha Sabha and Ors., [1995] Supp. I SCC 27, this court considered
provisions of Sections I 07 and I08 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) Privy Council 9 held that there is no presumption
of exact time of death under Section I 08 of the Evidence Act and the date C
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
clai'!led 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 D
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 E
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 F
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. G
Learned counsel appearing for the appellants has placed reliance on the
decision of the Lahore High Court in Sardar Amar Singh v. 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 H
96 SUPREME COURT REPORTS [2002] I S.C.R.

A 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
B placed reliance on a decision in Bashir Ahmad & Ors. v. 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
C 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.

D 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
E 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 I

Singh, who got possession of the land and his name was mutated in the
F 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 collaterals of Jagjit Singh, including the
present appellant. On these facts, we hold that as names of present appellants
G were mutated in the revenue record after rejecting the claims of plaintiff and
other collaterals, 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.

H On the facts proved in the case in hand, we are of the view that the
DARSHAN SINGH v. GUJJAR SINGH [PHUKAN, J.] 97

appellants have proved that their possession of the land in question is in A

}
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 B
court is restored. Consequently, suit filed by the plaintiff is dismissed. We
direct the parties to bear their own costs.

K.K.T. Appeal allowed.