Law:

Section:

(a) Civil Procedure Code (V of 1908)- S. 11-Res judicata-Suit for possession in respect of immovable property-Finding arrived at in suit that N was presumed dead having not been heard of for a long time-Finding not challenged in appeal After number of years N re-appearing alive (having returned after long absence abroad) and filing suit for recovery of his properties Verdict on question of presumption of death of N in previous suit Held, in circumstances, did not operate as res judicata-Evidence Act (I of 1872), S. 108. Sm. Bibhabati Devi v. Ramendra Narayan Roy A I R 1947 P C 19 ref. (b) Adverse possession- - . No one can claim adverse possession against person mistakenly presumed dead - Possession of one co-heir -Possession of all co-heirs-To justify inference of adverse possession against a co-heir some definite act of ouster from disputed property has to be established. Possession must be adverse to a living person, and, where H was possess­ing under a mistake as- to N's death, it is difficult to say how H can claim that by her possession she was asserting a right adverse to one whom she regarded as dead. Once this presumption is got rid of, the question of limitation also disappears, because, the possession of one co-heir is in law the possession of all the co-heirs. Mere non-participation in the profits of the property by one co-heir and exclusive possession by the others will not be sufficient to constitute adverse possession. In order to justify an inference of adverse possession against a co-heir, some definite act of ouster from the disputed property has to be established. No such evidence was adduced in this case. All that the evidence establishes is that the properties were mutated in the name of the legatees under the will on the presumption that the appellant was dead. In the circumstances there, was no adverse possession. Mst. Omai v. Hakeem Khan 1970 S C M R 499 and Sm. Bibhabati Devi v. Ramendra Narayan Roy A I R 1947 P C 19 ref. (C) Will - Note at foot of will stating "My son N . . . . . if he comes back, then all these lands and house (bequeathed by will) will be his property but if he does not come back they will belong to the legatees"-N,…

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