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Darshan Singh And Others v. Gujjar Singh (Dead) By Lrs. And Others
Factual and Procedural Background
Hira Singh and his brother Jagjit Singh were convicted of murder. During their imprisonment Jagjit Singh absconded, while Hira Singh obtained pardon and, after release, took possession of their entire ancestral land. Hira Singh died around 1920. A collateral, Smt. Har Kaur, entered into possession but was ultimately ousted when courts upheld the title of Rulia Singh, the adopted son of Hira Singh. In 1930 the revenue mutation was effected in Rulia Singh’s favour, and he remained in undisturbed possession until his death in 1962.
Thereafter the present appellants—Darshan Singh, Ala Singh and Pritam Singh, grandsons of Rulia Singh through his daughter—mutated the land, including Jagjit Singh’s share, in their own names. Gujjar Singh, a sixth-degree collateral of Jagjit Singh, challenged the mutation and, on failure before revenue authorities, filed a civil suit seeking a declaration that, as a collateral of both brothers, he alone was entitled to succeed. The trial court dismissed the suit, upholding the appellants’ adverse possession. The first appellate court reversed the trial court in part, granting Gujjar Singh a decree with respect only to Jagjit Singh’s share, and the High Court affirmed that decree with a minor modification to include other collaterals. The Letters Patent Bench maintained that result, and both sides sought redress before the Supreme Court in the present appeal.
Legal Issues Presented
- Whether the plaintiff, Gujjar Singh, established his right to succeed to Jagjit Singh’s estate by proving Jagjit Singh’s death in terms of Sections 107–108 of the Evidence Act, 1872.
- Whether Rulia Singh and, after him, the present appellants perfected title to Jagjit Singh’s share by adverse possession, and specifically whether there had been an “ouster” of the other co-sharers.
Arguments of the Parties
Appellants’ Arguments
- Relied on AIR 1937 Lah 890 (Sardar Amar Singh v. Sardarni Shiv Datt Kaur) to contend that removal of an absentee co-sharer’s name from revenue records is an overt act of ouster, commencing adverse possession.
- Asserted that their and their predecessor’s continuous, open and exclusive possession since 1930, accompanied by mortgage and sale deeds, satisfied the requirements for acquiring title by adverse possession.
Respondent’s Arguments
- Invoked AIR 1929 Oudh 337 (Bashir Ahmad v. Parshotam) to submit that exclusive possession by one co-sharer does not become adverse unless the title of other co-sharers is expressly denied; mere mutation is insufficient.
- Maintained that, as Jagjit Singh had not been heard from for over seven years, the court should presume his death as of the filing date of the present suit, thereby opening succession in favour of Gujjar Singh.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sri Vidya Mandir Education Society (Regd.) v. Malleswaram Sangeetha Sabha, 1995 Supp (1) SCC 26 | No presumption as to exact date of death under Sections 107–108 of the Evidence Act; claimant must prove the date. | Used to hold that Gujjar Singh bore the burden of proving when Jagjit Singh died; absence of such proof defeated his claim. |
| Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9 | Same principle regarding absence and presumption of death under Section 108. | Cited along with Sri Vidya Mandir to reinforce that no presumption of exact date can be drawn; corroborated dismissal of plaintiff’s succession claim. |
| Sardar Amar Singh v. Sardarni Shiv Datt Kaur, AIR 1937 Lah 890 | Removal of an absentee co-sharer’s name from revenue records constitutes an overt act amounting to ouster and starts adverse possession. | The Court accepted this reasoning, finding that the appellants’ mutations after litigation and denial of other collaterals’ claims amounted to clear ouster. |
| Bashir Ahmad v. Parshotam, AIR 1929 Oudh 337 | Exclusive possession by one co-sharer is not adverse without clear denial of others’ title; mutation alone insufficient. | The Court acknowledged the principle but distinguished the present facts, noting that the appellants’ mutations followed explicit litigation rejecting the respondents’ title, thereby satisfying the requirement of ouster. |
Court's Reasoning and Analysis
Burden of proving Jagjit Singh’s death: Relying on Sections 107–108 of the Evidence Act and Supreme Court precedent, the Court held that Gujjar Singh, as the claimant to succession, had to establish the date of Jagjit Singh’s death. The record contained neither pleadings nor evidence on this point. Therefore, succession did not open and the lower-court findings recognising his title were legally unsustainable.
Adverse possession and ouster: The Court reiterated that possession by one co-sharer is presumed to be on behalf of all unless there is clear ouster. It accepted the Lahore High Court view that removal of the absentee co-sharer’s name from revenue records after openly denying his title is an overt act of ouster. Here, after Smt. Har Kaur’s unsuccessful litigation, Rulia Singh secured mutation in 1930; after his death the appellants again mutated the land, defeating the plaintiff’s challenge. The appellants also mortgaged and sold portions of the land, treating themselves as owners. These acts were continuous, open, and adverse for well beyond the statutory limitation period, thereby perfecting their title by adverse possession.
Consequently, both grounds relied on by the appellate courts—plaintiff’s claimed succession and lack of adverse possession—were rejected.
Holding and Implications
ALLOWED. The Supreme Court set aside the impugned judgment, restored the trial court’s dismissal of the suit, and directed each party to bear its own costs.
Implications: The decision rejects any automatic presumption of an absentee’s date of death under Section 108, reinforcing the claimant’s burden of proof, and clarifies that revenue mutations coupled with explicit denial of title and long, hostile possession can constitute ouster sufficient to perfect adverse possession. No new legal doctrine was created, but existing principles were reaffirmed and applied to the specific facts.
S.N 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 of 1975.
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 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 — Defendants 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 the 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 Respondents 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 to customary law, Rulia Singh being the 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 the 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 the 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 of 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 1995 Supp (1) SCC 26 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 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. In the case in hand as the 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 the date of death of Jagjit Singh. The view of the High Court that as Jagjit Singh was not heard of for more than 7 years and, therefore, the date of filing of the present suit would be considered as the date of death of Jagjit Singh is contrary to the above provisions of law.
6. 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.
7. 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.
8. 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 Lah 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 take notice of it in the ordinary course and hence his knowledge of the adverse claim for other co-sharers may be reasonably presumed. In reply, learned counsel for the respondents has placed reliance on a decision in Bashir Ahmad v. Parshotam 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 records 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 the title of other co-sharers was denied.
9. 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 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 records 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.
10. 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 the present appellants got their names mutated after denying the title of collaterals of Jagjit Singh, including the present respondents. On these facts, we hold that as the names of the present appellants were mutated in the revenue records after rejecting the claims of the plaintiff and other collaterals, there was a clear ouster of other co-sharers of Jagjit Singh.
11. 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.
12. 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 Jagjit Singh and his other collaterals and they have perfected their title over the land by adverse possession.
13. 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.
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