RAM SWARUP Vs. ROSHAN

JUDGEMENT

(1.) We have heard learned counsel for the parties and we have come to the view that this appeal must be allowed. The admitted facts are that the appellant had taken on lease a house from two joint lessors, Lekh Raj and Shyam Lal. The suit and of which this special appeal arises, was instituted by Lekh Raj in the year 1954. He came forward with the plea that Shyam Lal was dead and he was therefore entitled to institute the suit all by himself. During the pendency of the suit. Lekh Raj purported to transported the entire house in suit to the present respondent, Roshan Lal, who thereupon got himself substituted as plaintiff in the suit. The trial Court and the first appellate Court both dismissed the suit. The trial court and the first appellate Court both dismissed the suit on the finding that the death of Shyam Lal had not been proved. The plea taken on behalf of the plaintiff was that Shyam Lal and died in the stampede in the Kumbha at Allahabad in the year 1954. Both the trial Court and the first appellate Court held that the plaintiff had failed to establish this death of Shyam Lal in the stampede. That was a finding of fact which was accepted by the learned Single Judge also. That point, therefore, need not be discussed by us in this special appeal. The learned Single Judge, however, decreed the suit on his view that a presumption could be raised under Sec. 108 of the Indian Evidence Act that Shyam Lal wad dead. Admittedly, when the suit was instituted, a period of seven years had not elapsed form the time when Shyam Lal had been last heard of. In fact, Kumbha took place early in the year 1954 and it was admitted that Shyam Lal was alive at the time. When the suit was instituted some time later in the year 1954, not even a year had elapsed and on the date of institution of the suit, therefore there as no presumption, under Sec. 108 of the India Evidence Act about the death of Shyam Lal simply because from the time of Kumbha upto the date of the suit, he and not been heard of. The suit was actually dismissed on 24th Sept., 1957 by the trial Court. During the trial of the suit also therefore, the only evidence that could be given at all on behalf of the plaintiff was that Shyam Lal had not been heard of by the persons who would have heard of him upto the date when the evidence was recorded. That evidence must have been recorded before 24th Sept. 57, and consequently even up to the stage when the decree in the suit was passed the provisions of Sec. 108 of the Indian Evidence Act did not become applicable. This was because upto that time seven years had not elapsed from the time when Shyam Lal had admittedly been known to be alive.

(2.) The learned Single Judge dealt with the second appeal in the year 1961, The case was actually decided by the learned Single Judge on 5th May, 1961. Since Kumbha had taken place in the early period of 1954, the learned Single Judge was of the view that at the time when he was hearing the appeal a presumption could be raised that the Shyam Lal was dead because of the provisions of Sec. 108 of the Indian Evidence Act. In taking this view, the learned Single Judge overlooked one important ingredient of Sec. 108 of the Indian Evidence Act. That ingredient is that the presumption about death could only be taken provided it was proved at the time when the presumption was raised that the person concerned had not been heard of for seven years by those who would naturally have head of him. In this case we are unable to find any material at all which would even suggest that the persons who would have heard of Shyam Lal, had given any evidence or disclosed to any one that they and not heard of him for seven years. In fact, no evidence was recorded at the stage of either the first appeal which was decided by a Civil Judge or at the stage when the second appeal was pending in this Court. There being no evidence it was impossible to hold that it was proved that it was proved that Shyam Lal had not been head of for seven years on the date when the second appeal was heard and decided by those persons who would have heard of him if he had been alive. As long as that was not proved the provisions of Sec. 108 of the Indian Evidence Act did not become applicable and the case had therefore to be decided not by applying Sec. 108 but by applying Sec. 107 of the Indian Evidence Act. Under the latter Sec. Shyam Lal had to be presumed to be alive and it was for the plaintiff in the suit who was the appellant was the second appeal, to establish that Shyam Lal was dead. This being the legal position the learned Single Judge was wrong in holding that Lekh Raj had obtained the sole right to sue for eviction and for arrears of rent because of the presumptions of death of Shyam Lal under Sec. 108 of the Indian Evidence Act and consequently the decree passed by the learned Single Judge had to be set aside.

(3.) The relief which was claimed in the suit, was for ejectment of the appellant and for arrears of rent. Neither of those prayers could be granted as long as there was presumption that Shyam Lal was alive. The suit for ejectment could only be who had created lessors jointly favour of the appeal the tenancy in could not be appellant. That tenancy could terminated by and any one of the not be granted to far as the relief two co-lessors. So far as relief for arrears was concerned the rent was also payable jointly to both. Even the rent of the share of Lekh Raj could not be decreed in his favour until shayam lal was made a party to the suit because it was presumed that shyam lal was alive and he was a necessary party to the suit. The suit was therefore rightly dismissed as a whole by the trial court and the first appellate court. In the view that have taken it is not at all necessary for us to express any opinion about the validity of the transfer in favour of the respondent Roshan Lal by Lekh Raj nor on the question whether Roshan Lal did or did not acquire any rights by virtue of that transfer.