DARSHAN SINGH AND ORS. versus GUJJAR SINGH (DEAD) BY LRS. AND ORS.

Citation: [2002] 1 S.C.R. 91 · Decided: 08-01-2002 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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. 
Evidence Act, 1872-Section 108. 
Death of a person-Claim of-Burden to prove-Is on the person who 
makes such a claim. 
E 
Presumption as to death-Exact date of death cannot be presumed--
F 
High Court presuming it to be on the date of filing 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 
D 
E 
Allowing the appeal, the Court 
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 
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) 
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

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