R.L. Anand, J.
1. Unsuccessful plaintiffs Makhan Singh and his son Joginder Singh have filed the present appeal and it has been directed against the judgment and decree dated 8.5.1997 passed by Additional District Judge, Faridkot, who dismissed the appeal of the present appellants by affirming the judgment and decree of the learned trial Court dated 5.12.1995 passed by Additional Senior Sub Judge, Muktsar, who dismissed the suit of the plaintiffs.
2. It may be mentioned here at the very outset that along with Makhan Singh and Joginder Singh present appellants, Nazar Singh, Surat Singh, Amrik Singh And Sadha Singh, who were defendants No. 3 to 6 in the trial Court, also filed an appeal against the judgment and decree of the trial Court and vide judgment dated 8.5.1997 (impugned judgment) both the appeals were dismissed. Nazar Singh, Surat Singh, Amrik Singh and Sadha Singh have not filed any appeal against the judgment and decree dated 8.5.1997 in the High Court, but only Makhan Singh and his son Joginder Singh, Plaintiffs No. 1 and 2, have come in the appeal, which I have heard with the assistance of the lawyers and also disposing of the same with the record of the trial Court.
3. Facts can be gathered in the following manner:-
Plaintiffs Makhan Singh and Joginder Singh filed a suit against Achhar Singh. defendant No. 1, his son Sucha Singh, defendant No. 2, Nazar Singh Surat Singh, Amrik Singh and Sadha Singh, defendants No. 3 to 6 respectively, and these four defendants (No.3 to 6) are the sons of Smt. Gurbachan Kaur, who was the real sister of Makhan Singh, Plaintiff No. 1, and Achhar Singh, defendant No. 1. The plaintiffs sought a declaration that they are the owners to the extent of 1/2 share in the suit property detailed in the head-note of the plaint as legal heirs of Harbans Singh and in the alternative to be declared owners of 41 Kanals 16 Marias of land, which is in their exclusive possession, and their possession has become open and hostile for a period of more than 12 years without payment of rent. The plaintiff have further sought a declaration that registered sale deeds dated 14.9.1987 and 15.9.1987 executed by Achhar Singh, defendant No. 1, as attorney of Smt. Gurbachan Kaur, his sister, are forged, fabricated, without consideration and have also sought a decree for permanent injunction restraining defendant No. 2 Sucha Singh, who is the son of Achhar Singh, defendant No. 1, from alienating the suit property in any manner.
Earlier the plaintiffs in the plaint claimed ownership of 1/6th share measuring 14 Kanals 19 Marias out of the total suit land 89 Kanals 17 Marias on the basis of family settlement with Gurbachan Kaur and also challenged the sale-deeds dated 14.9.1987 and 15.9.1987 executed by defendant No. 1 Achhar Singh in favour of his son Sucha Singh defendant No. 2, but during the pendency of the suit the plaintiffs amended the plaint and made an alternative claim of the ownership of the land to the extent of 1/2 share as stated above.
Plaintiff No. 1 Makhan Singh and defendant No. 1 Achhar Singh are the real brothers. Defendant No. 2 Sucha Singh is the nephew of plaintiff No. 1 Makhan Singh. Defendants No. 3 to 6 are the sons of Smt. Gurbachan Kaur, who was the real sister of Makhan Singh, plaintiff No. 1, Achhar Singh, defendant No. 1 and Harbans Singh, who was also the real brother of Makhan Singh and Achhar Singh. The case set up by the plaintiffs is that Harbans Singh and Gurbachan Kaur used to reside in Pakistan and owned property. After partition Harbans Singh was not heard of nor he was seen by anybody. The suit property came into existence in consolidation as it was allotted in the name of Harbans Singh by rehabilitation department although he, as per law, was required to be considered as dead prior to 1954. According to the plaintiffs, plaintiff No. 1 and defendant No. 1 became owner in equal shares of the estate of Harbans Singh, but mutation of inheritance of Harbans Singh was sanctioned after coming into force of the Hindu Succession Act and the same was sanctioned also in favour of Gurbachan Kaur along with plaintiff No. 1 and defendant No. 1. But this mutation is against the law. It was sanctioned on 24.8.1983. it is further alleged by the plaintiffs that immediately after sanctioning of the mutation Gurbachan Kaur admitting herself as not the legal heir of Harbans Singh relinquished her right in favour of defendant No. 1 and Plaintiff No. 1 equally. The land measuring 44 Kanals 19 Marias was earlier owned by plaintiff No. 1 but now by the plaintiffs and they have never paid any rent and their possession over the land has become adverse. Gurbachan Kaur assured the plaintiffs to get the revenue record corrected. The suit properly was the co-parcenary property of plaintiff No. 1 and defendant No. 1 and Gurbachan Kaur had no right regarding alienation in any manner. Defendant No. 1 Achhar Singh was a clever person. He got power of attorney from Gurbachan Kaur and on the basis of that power of attorney executed two sale-deeds dated 14.9.1987 and 15.9.1987 of the value of Rs. 32,000/- each in favour of his son Sucha Singh in order to usurp the right of plaintiff No. 1 According to the plaintiffs, both the sale-deeds are without consideration and fabricated. On the basis of those sale-deeds defendant No. 2 Sucha Singh is threatening to alienate the suit property and to interfere in the possession of the plaintiffs.
The notice of the suit was given to the defendants. Defendant No. 5 admitted the claim of the plaintiffs as per plaint and further stated that plaintiff No. 1 and defendant No. 1 are his maternal uncles and they should get 1/2 share of the land of his mother. Thereafter he did not appear in the Court. Defendants No. 3, 4 and 6 were proceeded exparte. So, we can say that defendants No. 3 to 6 did not give any contest to the alleged claim of the plaintiffs. The suit was, however, seriously contested by defendants No. 1 and 2, Achhar Singh and Sucha Singh respectively, and they pleaded that plaintiffs have no locus standi to file the present suit; that the suit is not maintainable in the present form; that the suit is not within limitation and that the suit is not properly valued for the purposes of Court fee and jurisdiction. The relationship, however, was admitted by these defendants. It was denied that the land in dispute came to the parties in lieu of the land left in Pakistan. It was denied that after creation of Pakistan Harbans Singh was not heard by any body. Rather he used to visit Amritsar and other places for allotment of property and he roamed from one place to other for allotment of property and in the jamabandi for the year 1980-81 he is recorded owner of the property. When he was not heard then plaintiff No. 1 and defendant No. 1 gave application to the Patwari on 10.3.1983 for entering the mutation in favour of Makhan Singh, Achhar Singh and their sister Gurbachan Kaur. Mutation No. 2021 was contested. Makhan Singh and Achhar Singh engaged Mr. Giani Ram Singh, Advocate, who explained the facts and got the mutation sanctioned in favour of Makhan Singh, Achhar Singh and Gurbachan Kaur. In the jamabandi for the year 1985-86 Achhar Singh, Makhan Singh and Gurbachan Kaur became the owners of the suit land in equal shares. It was denied that Harbans Singh was liable to be considered dead prior to 1954. Rather he was considered dead prior to 1983 and this fact was admitted by the plaintiffs in their case. It was denied that the mutation is illegal. It was also denied that Gurbachan Kaur had relinquished her right in the suit property in favour of plaintiff No. 1 and defendant No. 1 or admitted them owners to the extent of 1/2 share each, rather all the three became owners of the estate of Harbans Singh. Gurbachan Kaur through sale deeds dated 14.9.1987 and 15.9.1987 sold the property to Sucha Singh. Plaintiff No. 1 was never in possession of the suit property nor it was a co-parcenary property. The power of attorney executed by Gurbachan Kaur in favour of Achhar Singh, defendant No. 1 was not forged one. It was maintained by defendants No. 1 and 2 that defendant No. 2 Sucha Singh has become the owner of the property on the basis of sale-deeds executed by defendant No. 1. The plaintiffs filed a rejoinder to the written statement of defendants No. I and 2 and reiterated their allegations made in the plaint. On the above pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiff is owner in possession of the suit land? OPP
1-A. Whether plaintiff has become owner by way of adverse possession? OPP 1-B Whether Harbans Singh died before coming into force the Hindu Succession Act as alleged, if so, its effect? OPP
1-C. Whether the plaintiff has taken contradictory pleas in that plaint, if so, to what effect? OPD
2. Whether the sale-deeds dated 14.9.1987 and 15.9.1987 executed by defendant No. 1 are forged and without consideration and are not binding upon the plaintiff? OPP
3. If issue No. 1 is proved, whether the plaintiffs are entitled to declaration and permanent injunction as prayed for? OPP
4. Whether the plaintiffs have no locus standi to file the present suit? OPD
5. Whether the suit of the plaintiff is not maintainable in the present form? OPD
6. Whether the suit of the plaintiff is not within limitation OPD
7. Whether the suit of the plaintiff is not properly valued for the purposes of Court fee and jurisdiction? OPD
8. Relief.
3. The parties led oral and documentary evidence. Issues No. 1, 1-A, 1-B, 2, 3 and 4 were decided against the plaintiffs and in favour of defendants No. 1 and 2. Issues No. 1 C, 5 and 7 were decided against the contesting defendants. Issue No. 6 was decided in favour of the defendants and against the plaintiffs and it was held that the suit of the plaintiffs is barred by limitation. On the basis of the above findings, the suit of the plaintiffs was dismissed.
4. Aggrieved by the judgment and decree of the trial Court plaintiffs No. 1 and 2 and defendants No. 3, 4, 5 and 6 filed two separate appeals before the first Appellate Court and both the appeals were dismissed vide impugned judgment and decree dated 8.5.1997. However, in the High Court only plaintiffs No. 1 and 2 have come in the appeal.
5. The records of the trial Court were also requisitioned.
6. I have heard Mr. ML. Sarin, Senior Advocate, on behalf of the appellants, Mr. Surjit Singh, Advocate, on behalf of the respondent and with their assistance have gone through the records of this case.
7. The first contention raised by the learned counsel for the appellants is that under the law there is no presumption with regard to the date of death of an individual. The only presumption of law is with regard to the death of an individual. He submitted that it cannot be inferred that Harbans Singh died seven years prior to the date of the filing of the application before the revenue authorities. It was obligatory upon the contesting defendants to show specifically about the actual date of death of Harbans Singh. The learned counsel submitted that in the present case it should be inferred that Harbans Singh had died when the plaintiffs filed the present suit for declaration in the trial Court in the year 1991. Before the year 1991 Smt. Gurbachan Kaur had died somewhere in the year 1988-89. Therefore, she does not inherit any right, title or interest in the estate of Harbans Singh and in this manner the interest of Harbans Singh will devolve upon his two brothers namely Makhan Singh, Plaintiff No. 1 and Achhar Singh, defendant No. 1, in equal shares. Further, it was submitted that any power of attorney executed by Gurbachan Kaur in favour of her brother Achhar Singh will be meaningless because she had not validly inherited any right, title or interest in the estate of her brother Harbans Singh. The learned counsel submitted that even if it is inferred that Harbans Singh had died seven years after the partition of the country, it would come to, that he had died somewhere in the year 1954 before coming into force of the Hindu Succession Act and in that eventuality also the estate of Harbans Singh comes to Makhan Singh and Achhar Singh in equal shares. Therefore, the plaintiff No. 1 would inherit the estate of Harbans Singh to the extent of 1/2 share.
8. On the contrary, the learned counsel for the contesting respondents submitted that it will be inferred in the present case that Harbans Singh had died after coming into force of the Hindu Succession Act and seven years prior to the date of filing the application by the parties before the revenue authorities on 10.3.1983. Meaning, thereby that Harbans Singh will be deemed to have died somewhere in the year 1976 after coming into force of the Hindu Succession Act. Therefore, as per the provisions of Hindu Succession Act Gurbachan Kaur would get 1/3rd share along with her brothers Makhan Singh and Achhar Singh, who also will inherit 1/3rd share each of the estate of Harbans Singh. He submitted that there is a categorical admission of the parties before the revenue authorities clearly stating that Harbans Singh is not heard. The parties voluntarily made a request before the revenue authorities for the mutation of Harbans Singh in equal shares and in these circumstances, the plaintiffs have no case.
9. Before, 1 reply to the submissions raised by the learned counsel for the parties, it will be useful for me to refer to the relevant provisions of the case law. The case set up by the plaintiffs is that Harbans Singh has not been heard after the partition of the country. There is no proof to that effect that Harbans Singh became missing on the partition of the country. Rather the land was allotted to Harbans Singh after the partition of the country. Thus it is difficult for this Court to hold that Harbans Singh died or deemed to have died prior to coming into force of Hindu Succession Act.
10. Session 107 of the Indian Evidence Act lays down that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 108 of the Act is a proviso to Section 107 and it lays down that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In this view of the matter, it will be useful for me to refer to a judgment Mehan v. Kishi, (1969)71 Punjab Law Reporter 225, which has been relied upon by the learned counsel for the appellants wherein it was held as follows:-
'That presumption under Section 108 of the Indian Evidence Act extends only to the factum of death at the expiration of seven years and not to the time of death at any particular period. No presumption under the section can be raised that the death of the person concerned took place on any particular date on even at the end of seven years or at any other particular time within the period of seven years in question. The exact time of death is not a matter of presumption under the section but of proof by evidence which may be oral or circumstantial. The burden of proof that death took place at a particular time within the period of seven years lies on the person who claims right for the establishment of which that fact is essential.'
11. In this case the case set up by the plaintiffs was that Harbans Singh had died before coming into force of the Hindu Succession Act. I have already stated above that plaintiffs have not led any cogent evidence that Harbans Singh had died before comjng into force of the Hindu Successions Act. In these circumstances, the point for determination is whether Harbans Singh had died after the enforcement of the Hindu Succession Act and before the death of Smt. Gurbachan Kaur, who died 4/5 years prior to 1993, as alleged by the plaintiff himself in his statement, which was recorded in the year 1993, wherein he had stated that Gurbachan Kaur died 4/5 years back. Meaning thereby that Gurbachan Kaur died somewhere in the year 1988-89. If it is proved on the record that Harbans Singh is dead or presumed to have died during the life time of his sister Gurbachan Kaur, naturally the estate of Harbans Singh would go to his two brothers namely Makhan Singh and Achhar Singh and sister Smt. Gurbanchan Kaur. If the death of Harbans Singh is taken after the death of Gurbachan Kaur, then the estate of Harbans Singh would go to his two brothers Makhan Singh and Achhar Singh.
12. At the cost of repetition I am saying it that it is not proved on the record that Harbans Singh and died before the commencement of the Hindu Succession Act. Firstly, it may be mentioned that it is not the case of the plaintiffs in the plaint that it should be inferred that Harbans Singh died after the death of Gurbachan Kaur. Be that as it may, let us see what was the conduct of the parties in this regard. Ex.DX is the certified copy of the order of the Assistant Collector Grade-I, which was passed on 24.8.1983 in the presence of Shri Ram Singh Giani, Advocate, who was representing Makhan Singh and Achhar Singh. In the order it is clear that reference was made by Assistant Collector, IInd Grade to Assistant Collector, 1st Grade on 13.6.1983 and it was held by the Collector that Harbans Singh was not seen in the village after the creation of Pakistan and this fact has also been endorsed by his brothers and sister. It has also been observed by the Collector after verifying the record of the Patwari that the land in question was allotted to Harbans Singh, who even got the possession of the land. From 1963 to 1966 the land was cultivated by Makhan Singh and Achhar Singh. In order to secure the presence of Harbans Singh, a publication was also given in the newspaper and it was also observed by the Collector that Harbans Singh was not heard or seen for the last thirty years by any of his relatives and for this reason he is attesting the mutation in favour of Makhan Singh and Achhar Singh and Smt. Gurbachan Kaur in equal shares. Prior to the passing of this order. Ex. DX an application was given on 10.3.1983 by the parties stating that the whereabouts of Harbans Singh are not known, therefore, his mutation may be sanctioned in favour of his two brothers Makhan Singh and Achhar Singh and one sister Gurbachan Kaur. In such a situation it has to be inferred that Harbans Singh died somewhere in the year 1975-76 after the enforcement of the Hindu Succession Act and in such a situation his estate will go to his two brothers and one sister in equal shares.
13. In the light of above discussion the first argument of Mr. Sarin is hereby rejected and repelled that it should be inferred that Harbans Singh either died before the enforcement of the Hindu Succession Act or after the death of Gurbachan Kaur. It was necessary on the part of the plaintiffs to establish by leading direct or circumstantial evidence that Harbans Singh died after the death of Gurbachan Kaur, who admittedly died somewhere in the year 1988-89. Thus the estate of Harbans Singh will devolve upon his two brothers and one sister in equal shares and not in equal shares to Makhan Singh, plaintiff No. 1; and Achhar Singh, defendant No. 1.
14. The learned counsel for the appellants also relied upon N. Jayalakshmi Ammal and Ors. v. R. Gopala Pather and Anr., J.T. 1994(6) S.C. 19. This judgment is also not helpful in this case. As I have already stated above that the plaintiffs are to establish that Harbans Singh had either died somewhere before the enforcement of the Hindu Succession Act or after the death of Gurbachan Kaur. On both these scores they have failed.
15. The second submission raised by the learned counsel for the appellants is that there cannot be any estoppel against the law and mutation does not confer any right, title or interest. In support of his contention he relies upon Balwant Singh and Anr. v. Daulat Singh (dead) by L.Rs. and Ors., 1997(2) P.L.J. 132, a judgment of the Hon'ble Supreme Court, wherein it has been held that mutation entries do not covey or extinguish any title. These entries are relevant only for the purpose of collection of land revenue. So far as the legal aspect is concerned, there is no dispute. But the point for adjudication in the present case is about the succession of Harbans Singh. Plaintiff No. 1 can only succeed if he establishes that Harbans Singh pre-deceased his sister Gurbachan Kaur. The plaintiffs' own case is that Harbans Singh was not heard after the partition of the country. Meaning thereby inference of death of Harbans Singh has to be drawn that he died somewhere in the year 1977. Indefinite and continuous inference cannot be drawn in favour of the plaintiffs that Harbans Singh will be presumed to be alive because defendant No. 1 has not come with any specific evidence about the actual time of death. Moment it is ruled out that Harbans Singh had not died prior to enforcement of the Hindu Succession Act, then the evidence on the record is enough to conclude that Harbans Singh was not heard for the last seven years prior to the filing of the application on 10.3.1983 before the revenue authorities and prior to 24.8.1983 before the sanctioning of the mutation of Harbans Singh in favour of Makhan Singh, Achhar Singh and Smt. Gurbachan Kaur. Smt. Gurbachan Kaur will inherit as her absolute property. She can alienate the same which she did by executing power of attorney in favour of her brother Achhar Singh, who further sold the property through registered sale deeds dated 14.9.1987 and 15.9.1987 in favour of his son Sucha Singh; defendant No. 2. These sale deeds have been proved for consideration and due execution is also proved. In this case the question of estoppel or mutation does not arise. It is a basic law that succession cannot remain in abeyance. Moment the death of Harbans Singh is presumed and inferred, his succession has to go to his legal heirs according to law and according to shares specified in the Hindu Succession Act. In this manner, plaintiff No. 1 will only get l/3rd share in the property of Harbans Singh. Rather there is an interesting statement of plaintiff No. 1 himself when he appeared as his own witness and stated in his cross-examination that he is not disputing the succession of Harbans Singh rather he is disputing the estate of Smt. Gurbachan Kaur. Meaning thereby that plaintiff Makhan Singh himself admits that Gurbachan Kaur has rightly become the owner of the property being one of the legal heirs of Harbans Singh. His grouse is why Gurbachan Kaur has sold the property to the son of Achhar Singh, defendant No. 1. In this manner, Makhan Singh, plaintiff No. 1, virtually has no locus standi to file the suit when he is contesting the estate held by Gurbachan Kaur. With the dealt of Gurbachan Kaur her estate, if any left, shall devolve upon her sons, daughters and husband according to law and not upon the plaintiffs Makhan Singh or his son Joginder Singh.
16. The third submission which was raised by the learned counsel for the appellants is that it was the alternative case of the plaintiff-appellants that they have become the owners of the property by way of adverse possession. In support of his contention, the learned counsel relies upon Puran v. Kure, 1955 Punjab Law Reporter 57, where it was held that when the plaintiff took the possession of the land without the consent of the owners and he remained in possession without payment of any rent and the owners took no steps to assert their rights as against him for a period of 15 years and the entry in the revenue records was 'Gair Maurusi bila lagan bawaja nawakfiyat', in such a situation an adverse possession is constituted. The reliance was also placed upon K.V. Swamyanathan and Ors. v. E.V. Padamanabhan and Ors. J.T. 1991(1) S.C. 83, wherein it was observed as follows :-
'Adverse possession by nature implies the ownership of another. Where one person is in possession of property under any title, and another person claims to be the rightful owner of the property under a different title, the possession of the former is said to be adverse possession with reference to the latter. Adverse possession is a statutory method of acquiring title to land by limitation. It depends on animus or intent of occupant to claim and hold real property in opposition to all the world, and also embodies the idea that the owner of the property has knowledge of the assertion of ownership by the occupant. 'Ownership of property is, says Austin, 'a species of jus in rem. It is a right residing in a person, over or to a person or thing; and availing against other persons universally or generally. The obligations implied by it are also negative as well as universal '(Austin on jurisprudence, p. 177)', It is a right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the power of disposition (from himself and his successors per universitatem and from all other persons who have a spes successions under any existing concession or disposition), in favour of such person or series of persons as he may choose, with the like capacities and powers as he had himself, and under such conditions as the municipal or particular law allows to be annexed to the dispositions of private persons.'
Both the judgments are misplaced and do not fit in the circumstances. The plea of adverse possession is destructive to the case set up by the plaintiffs. On the one hand, the case set up by the plaintiffs is that the estate of Harbans Singh will go to plaintiff No. 1 Makhan Singh and defendant No. 1 Achhar Singh in equal shares and in that eventuality they will become co-sharers. If the property goes to Smt. Gurbachan Kaur along with Makhan Singh and Achhar Singh then there would be three co-sharers. In both the eventualities the status of Makhan Singh is of a co-sharer and he can claim adverse possession against a co-sharer by leading strong evidence clearly showing an overt act through which he would go to disposses his co-sharers. The counsel adopted the arguments which were advanced by the plaintiffs before the Courts below and are contained in para No. 16 of the judgment of the first Appellate Court and it will be useful for me to reproduce para No. 16 of the judgment of the first Appellate Court as follows:-
'16. This issue has also been hotly contested by the learned counsel for the appellants. The learned counsel for the appellants has contended that from perusal of revenue record, it is proved that plaintiff Makhan Singh and Achhar Singh defendant are in possession of the land owned by Harbans Singh. It is further contended that defendant No. 5 Amrik Singh has filed written statement admitting the claim of the plaintiffs. It is further contended that Amrik Singh defendant No. 5 is natural heir of Gurbachan Kaur and in case the sale deed executed by Gurbachan Kaur is held to be invalid in that case he is entitled to inherit the land owned by Gurbachan Kaur. The learned counsel for the appellants has taken me to jamabandi Ex. P-6 and has contended that Makhan Singh and Achhar Singh are in possession of whole of the land. It is further contended that in column No. 9 in Ex. P-6 it has been mentioned that Achhar Singh is in possession of land as owner 'Bawaja Tasabar Malkeat'. This jamabandi is for the year 1970-71. It has been contended that plaintiff Makhan Singh had been in possession of the suit property to the extent of 1/2 share and Harbans Singh never came in possession of the property. The learned counsel for the appellants has contended that in case no rent or 'wataie' is paid in that case the possession matures into adverse possession and he relied upon (1965)67 P.L.R. 161, Maman Singh v. The Resident Magistrate, Gohana and Ors., It is further contended that in jamabandi Ex.P-16 for the year 1975-76 there is entry 'Bawaja Tasabar Malkeat Khud in column No. 9. It is further contended that plaintiff Makhan Singh is in possession of 41 kanals 16 marlas of land whereas Achhar Singh is shown in possession of 48 kanals 1 marla of land in this jamabandi. It is further contended that Harbans Singh has not been shown in possession. The learned counsel for the appellants has further contended that entry in the revenue record to the effect that 'Gair Maunisi Bila Lagan Bawaja Nawakiflt' concludes the adverse possession and has relied upon (1955)57 P.L.R. 57, Puran v. Kure in this regard. The learned counsel for the appellants has contended that plaintiffs be declared owners of the suit property on account of adverse possession.'
The argument of the learned counsel for the appellants is not acceptable for the reasons that upto 24.8.1983 when the mutation of Harbans Singh was attested, the plaintiff No. 1 and defendant No. 1 were treating themselves as co-shares along with Smt. Gurbachan Kaur with regard to the estate of Harbans Singh. This is the reason that mutation of Harbans Singh was sanctioned in favour of two brothers and sister in equal shares. On this date the status of the parties was of co-sharer. A very strong evidence is required on the part of a co-sharer who wants to oust his co-sharer and wants to succeed on the plea of adverse possession. Mere long possession howsoever is no ground to hold that a party has become successful in proving the adverse possession. Even after 1984 the parties were treating themselves as co-sharers. The plaintiffs instituted the suit without waiting for 12 years even. Any possession of the plaintiffs will be considered as possession on behalf of other co-sharers. It has been rightly observed by the first Appellate Court ''None of the cases cited by the learned counsel for the appellants relates to a co-sharer. 'The possession of the plaintiffs has not matured into title on the plea of adverse possession. Therefore, I repel this argument also. 17. It was then argued by the learned counsel for the appellants that both the Courts wrongly held that Article 58 of the Limitation Act is applicable in this case. There is a fallacy in the argument of the learned counsel for the appellants. The plaintiff have filed a suit for declaration that they are entitled to 1/2 share in the estate of Harbans Singh. With regard to the death of Harbans Singh I have already held that it has to be inferred that he died seven years prior to 1987. If the three years are calculated from 1976-77, the suit could be instituted within three years i.e. somewhere in the year 1980. If three years are to be calculated from the date of the mutation i.e. 24.8.1983, then it has to be filed somewhere in the year 1986 i.e. upto 24.8.1986. From both these angles, the suit was time barred. The plaintiffs have not sued for possession on the basis of their alleged title. Article 58 of the Limitation Act has been rightly taken note of. The suit of the plaintiffs was also barred by limitation.
There is no merit in this appeal. The same is hereby dismissed with no order as to costs.