JUDGMENT Devinder Gupta, J.—This Regular Second Appeal has been preferred by plaintiff-appellant challenging the Judgment and decree passed on April 14, 1980 by District Judge, Mandi, allowing the appeal of defendant-respondent and thereby reversing the judgment of Senior Sub-Judge, Kullu, dated May 24, 1976. 2. The plaintiff filed a suit for grant of a decree for joint possession claiming 1/2 share in the suit property alongwith the defendant. The facts on which the suit was brought are like this. The suit property was owned and possessed by one Bhagat Ram, who died on June 14, 1954. He had two wives, namely, Smt. Lai Dassi alias Ghungri and Smt. Jaie. Diwan Chand is the son of Bhagat Ram from his first wife, Smt Ghungri and plaintiff from the second wife, Smt. Jaie. Since at the time of death of Bhagat Ram, plaintiff was 1 year and 9 months old, therefore, taking undue advantage of his minority, the defendant in connivance with his mother, Smt. Jaie, who had already remarried, and the Lambardar of the Illaqua got mutation of inheritance attested in his name on July 16, 1954 as the sole surviving heir of deceased Bhagat Ram. Claiming himself to be one of the heir of Bhagat Ram alongwith the defendant, the plaintiff claimed a decree for joint possession to the extent of 1/2 share as the defendants had failed to accede to his claim when a demand was made by him on attaining majority. 3. The suit was resisted by defendant on the ground that Bhagat Ram had already divorced Smt. Jaie during his life time and even prior to that she bad already started living at the house of one Thakur Singh and Bhagat Ram had no access to her when plaintiff was conceived or born, thus the right of the plaintiff to inherit the estate of Bhagat Ram to the extent of 1/2 share was specifically denied. The trial court decreed the suit of the plaintiff holding him to be the son of Bhagat Ram out of his second wife Smt. Jaie. In appeal the lower appellate court set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff. 4. The trial court decreed the suit of the plaintiff holding him to be the son of Bhagat Ram out of his second wife Smt. Jaie. In appeal the lower appellate court set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff. 4. During the course of the hearing of the appeal, the main stress of the learned Counsel for the appellant was that admittedly the plaintiff was born on September 25, 1952 and Bhagat Ram died on June 14, 1954. According to the evidence produced by the defendant, divorce between Bhagat Ram and Smt Jaie took place on August 12, 1952 as per document Ex DW I/A. As such the fact that the plaintiff was born during the continuance of valid marriage between Bhagat Ram and Smt Jaie was the conclusive proof that the plaintiff was the legitimate son of Bhagat Ram in view of the provisions of section 112 of the Indian Evidence Act and as the defendant had failed to show non-access at the time when the plaintiff could have been conceived, the judgment of the lower appellate court is liable to be set aside. The learned Counsel for the appellant sought reliance to his arguments by citing a decision of the Supreme Court in Perumal Nadar {dead) by Legal Representative v, Ponnuswami Nadar (minor) AIR 1971 SC 23^2, wherein it has been held by their Lordships that unless husband is able to establish absence of access, presumption arising under section 112 of the Evidence Act of legitimacy of the child born during the subsistence of valid marriage where husband and wife had been living apart in the same village long before the birth of the child will not be displaced. Support was also sought from another decision of the Supreme Court in Chilukuri Venkateswarlu v Chilukuri Venkatanarayana, AIR 1954 SC 176, wherein it was held by the Supreme Court that: ".... presumption, which section 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. presumption, which section 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council Vide : Kirapaya v. Musandi, AIR 1934 PC 49 (A), existence and con-existence of opportunities for marital intercourse It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence ; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory 5. Applying the ratio of these decisions to the facts of the present case, it will be seen that the defendant has miserably failed to lead any evidence qua the non-access which was a plea specifically taken by him in his written statement. The validity and the legality of the marriage of Bhagat Ram with Smt. Jaie is not disputed Evidence has been led to show that prior to the birth of the plaintiff relations between Bhagat Ram and Smt Jaie had become strained and she had started residing in her parental house located at a distance of 200 yards away from the house of Bhagat Ram. Thakur Singh is a person who has been named by the witness of the defendant with whom the mother of the plaintiff was having illicit relations prior to divorce and it has come in evidence that Thakur Singh had started residing with Smt. Jaie at her parental house although his own house was at a distance cf about 3 furlongs from the house of Bhagat Ram, In case Smt. Jaie was residing in the same village in her parental house located quite near to the house of Bhagat Ram, it cannot be said that he had no access to her. The law requires a positive proof of non-access as between the parties to the marriage and the mere fact that they are living separately in two different houses is insufficient to establish non-access Access and non-access connote existence and non-existence of opportunities for marital intercourse The fact of non-access has to be proved like any other physical fact and can be established both the by direct and circumstantial evidence of unambiguous character, unless such evidence is forthcoming, it will not be possible for any court to believe to be probable that there was no access, (See : T. P. Manicka Mudaliar v. Km. Kannu alias Venka-lakshmi Ammah AIR 1942 Mad 129). Evidence to the effect that both Bhagat Ram and Smt. Jaie had strained relations and she was staying in a separate house in the same village would not be an act of an unambiguous character to prove non-access. Earlier evidence to the effect that Smt Jaie was living with Thakur Singh cannot be said to be an evidence of non-access by her husband Bhagat Ram. While saying so, I am fortified in my view by a judgment of the Division Bench of the Bombay High Court reported in AIR 1946 Bombay 110, G. R. Supa v. D. S. Sonavane and Co. and others. Not only the defendant failed to lead evidence of an unambiguous character to prove non-access but one of his witnesses DW 2 (Devi Ram) has even admitted that the plaintiff was horn at the house of Bhagat Ram. This is a case in which presumption of legitimacy of the plaintiff born during the continuance of the marriage between Bhagat Ram and Smt. Jaie must be drawn on the defendant having failed to give proof of non-access. My attention was also drawn, by the learned Counsel for the appellant, to Ex. P-l, which is an extract of entry recorded at serial No. 74 in the birth register maintained at the police station and Ex. P-5, which is the original birth register showing the entry of birth of the plaintiff. In the birth register at S. No. 39 an entry has been made on September 25, 1952 at the behest of Bhagat Ram showing the plaintiff as his son from Smt. Jaie. There is no reason to disbelieve the genuineness of original birth register Ex. P-5 and also the entry appearing in the document Ex. In the birth register at S. No. 39 an entry has been made on September 25, 1952 at the behest of Bhagat Ram showing the plaintiff as his son from Smt. Jaie. There is no reason to disbelieve the genuineness of original birth register Ex. P-5 and also the entry appearing in the document Ex. P-4 and in the absence of any evidence to rebut these entries, a conclusion can safely be drawn that the plaintiff was born at the house of Bhagat Ram during the subsistence of his marriage with Smt Jaie. 6. The learned Counsel for the defendant-respondent has placed a strong reliance upon document Ex. DW 6/A which is the original application thumb-marked by Thakur Singh while admitting the plaintiff in a local school and in the same the plaintiff has been shown as the son of Thakur Singh, on the basis of which not only he was admitted in the school but also school leaving certificate was issued copy of which is Ex. DW 3/A. In both these documents, the date of birth of the plaintiff is shown as June 30, 195?. Thakur Singh admitted having thumb-marked Ex, DW 6/A. I have perused this document which is written in Urdu and all the columns have also been filled in Urdu. The explanation given by Thakur Singh is that he signed the form not as a father but as a guardian of the plaintiff. The person who made the entries in the form has not been examined by the defendant. Thakur Singh, who presumably was an illiterate person, has thumb-marked the application and the explanation given by him that he signed the same as guardian cannot be disbelieved. The further contention of the learned Counsel for the defendant-respondent is that in Ex. D-3, which is the copy of the electoral roll prepared in the year 1970, the plaintiff has been shown as son of Thakur Singh and on the basis of this entry inference may be drawn to the effect that Thakur Singh was also treating the plaintiff as his son. No reliance can be placed upon this document, as the age of a person shown therein by the register of Chet Ram son of Thakur Singh is 2! years whereas the plaintiff had not attained that age in the year 1970 and even he was not eligible to exercise his franchise. Ex. No reliance can be placed upon this document, as the age of a person shown therein by the register of Chet Ram son of Thakur Singh is 2! years whereas the plaintiff had not attained that age in the year 1970 and even he was not eligible to exercise his franchise. Ex. D-2 is the copy of an extract from the voter list for the year 1970 with respect to the same patwar Halqua where Thakur Singh resided and his name in this list appears at S. No 1099 whereas in Ex D~3 the name of Chet Ram is shown at S. No. 1304 in the list. Had it pertained to the plaintiff being the son of Thakur Singh, his name would have appeared in close proximity to the entry at S. No. 1099. 7. Learned Counsel for the defendant-respondent made another submission that the plaintiff is estopped from claiming himself to be the son of Bbagat Ram because of the admission made by his mother Smt. Jaie in document Ex. DW 1 /A and by her conduct at the tithe of attestation of mutation of inheritance to the estate of Bhagat Ram. In the document Ex. DW/! she admitted that she was leading an unchaste life for the last seven years and the plaintiff was not born out of the loin of Bhagat Ram. A challenge has been made to this document by the plaintiff firstly on the ground that the same was not produced at the times of filing the written statement but was produced only on December 19, 1971 after the closure of the plaintiffs evidence in affirmative and secondly the bare recitals in this document would show that the same was not executed by Smt. Jaie of her own free will which fact will be evident from the statement of a witness that at one stage Bhagat Ram was reluctant to agree for divorce till Smt. Jaie would agree that the plaintiff had not born out of his loin. Moreover, admission made by Smt, Jaie, after the plaintiff was born, when a dispute had already arisen, cannot be held binding upon the plaintiff as neither he derived any title through Smt. Jaie nor it is the statement made on his behalf. Moreover, admission made by Smt, Jaie, after the plaintiff was born, when a dispute had already arisen, cannot be held binding upon the plaintiff as neither he derived any title through Smt. Jaie nor it is the statement made on his behalf. In so far as the conduct of Smt. Jaie, at the time of attestation of mutation is concerned, there was no inquiry made by the revenue officer, while attesting the mutation, about the child born to Smt- Jaie. It is pertinent to make a reference to column 15 in Ex. P»3 which is the copy of mutation No. 215 wherein Patwari Halqaa on July 8,1S54 submitted a report to the attesting officer that Bhagat Ram has since died and has left behind two widows and two sons. Strangely enough, when on July 15, 1954, the mutation came up for attestation before the Revenue Officer neither any reference was made with respect to the second son (plaintiff) nor any inquiry was made in this regard. The order of attestation of mutation, as such, without any inquiry is of no help and it cannot be said that Smt. Jaie made any admission at this stage or conducted herself in such a manner which would deprive the plaintiff of his right The order only says that Smt. Jaie did not press her claim as the widow of Bhagat Ram as she had already remarried Thakur Singh. The findings recorded by the lower appellate court in view of the aforementioned discussion cannot be upheld and as such are liable to be set aside The lower appellate court has drawn an adverse inference against the plaintiff to non-suit him on the ground of delay in approaching the court. Bhagat Ram, as mentioned above, died on June 14, 1954 and mutation in respect of his estate was attested on July 15, 1954. Plaintiff attained majority on September 25, 1970 and as such the suit instituted by him on September 10, 1973 was well within period of three years from the date of attaining majority and even if the relief of declaration is to be found implicit in the relief of possession, the suit was within time. In view of the above, the appeal succeeds and is allowed. The judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. In view of the above, the appeal succeeds and is allowed. The judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. Parties are left to bear their own. costs in this court. Appeal allowed.