RAM BHAROSEY Vs. BHIKAM SINGH

JUDGEMENT

(1.) THIS is a plaintiff's second appeal. The plaintiffs had filed a suit against the defendant-respondent on the ground that they were three brothers i. e. the two plaintiffs and one Sone Lal. The said Sone Lal was not seen for more than 20 years his whereabouts have not been known to the plaintiffs and, therefore it should be presumed that Sone Lal was already dead. The defendant No, 2 is the Lekhpal of the village. It is said that the defendant No. 2," in collusion with defendant No. 1, filed one suit No. 18 of 1964 against the plaintiff for the demolition of the conduction which plaintiff had made in the dispute grove. They claimed l/3rd share of the grove on the basis of sale-deed alleged to have been executed by Sone Lal in their favour. The plaintiffs as defendants in that suit claimed that the said sale-deed was absolutely fictitious and manipulated. The present defendants ultimately withdrew their suit No 18 of 1954 and have not yet filed it thereafter. Now the defendants have illegally cut away two dried-up trees standing in the plaintiffs' grove and also started claiming ownership of the grove and also a right of removing the fees. In the circumstances, the present suit was filed for injunction and price of trees already cut away by the plain tiff. During the pendency of the suit an amendment was sought and relief was sought to the effect that the sale-deed dated 25-8-1960 alleged to have been executed in favour of the defendants by Sone Lal was fictitious and the same be cancelled. THIS suit of the plaintiffs was contested by defendant No. 1 and it was contended that Son; Lal had 1/3rd share in the grove in dispute and he was in possession thereof and accordingly his name continued to be recorded in the revenue papers. It was also contended that the said Sone Lal executed the sale-deed dated 25th August 1960 for proper consideration in favour of the defendants and the same was binding on the plaintiffs. The suit was decreed by the trial Court but on appeal the lower appellate Court decided that the trial Court had wrongly presumed the death of Sone Lal merely on the basis of the plaintiff's evidence that he had not been heard of for more than seven years. It also held that under law there can be no presumption about the actual time of the death. Therefore, the lower appellate Court pro ceeded to decide that on the date of the sale-deed dated 19-7-1960 which was registered on 25-8-1960 Sone Lal was alive and his death on that date could not be presumed. The Court, therefore, dismissed the suit. The learned counsel appearing for the plaintiff-appellant has urged that the lower appellate Court has wrongly applied the provisions of Sections 107 and 108 of the Evidence Act and has, therefore, cast burden of proof on wrong shoulders. It is also alleged that Kutumb register which has been filed on the record has not been taken into consideration and lastly it is submitted that if Sone Lal was alleged to be alive the lower appellate Court could have raised a presumption against the defendant from non- production of Sone Lal as a witness by them. In order to properly appreciate the argument of the learned counsel for the appellant it would be necessary to have Sections 107 and 108 of the Evidence Act before us. Theses sections read as under:- Sec 107: "When the question is whether a man is alive or dead, and it is shown that he was alive within 20 years, the burden of proving that be is dead is on the parson who affirms it," Sec. 108: "Provided that the question as to 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 hear of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it." A close reading of the two sections together will go to show that they deal with the burden of proof for establishing as to whether a person is aver or not if certain pre-condition exist If a man was alive within 30 years of the date when the controversy arise as to whether he is dead or alive, then the person would be presumed to b- alive unless the contrary is proved. On the other hand if a person has not been guard of for seven years or more by those persons who should have naturally heard of him the burden that he is alive would be on the person who claims that such a person is alive, in the instant case the controversy as to whether or not Sone Lal was alive on 19th July 1960 when the sale-deed in question was alleged to have been ex. cute a, the case of the plaintiff was that the said Sone Lal had not been heard of for more than 20 years before the filing of the suit which was filed in January, 1967. According to the plaintiffs therefore, the said Sone Lal was not heard of by team since 1947. If this part of the contention of the plaintiff is found to be correct then the burden would shift on the defendant to prove that Shri Sone Lal was alive on the relevant date and we will then have to examine Whittier defendant has established that the said Sono Lal was alive on the date of execution of the sale-deed. The presumptions which arise under Sections 107 and 108, however, are both rebut table. It may also be stated here that pro visions of Sections 107 and 108 merely provide a rule of evidence and do not raise a presumption in respect of data of a person at a certain time or on a particular date. Under the provisions of Sections 107 and 108 of the Evidence Act it must be proved that the presumption mentioned therein extends merely to the fact of death after the period of seven years but it does not raise any presumption about the time of the death at any particular period, i. e. there is no presumption that the death of the concerned person too piece after the expiry of the seven years from the date when he was not heard of or at any other particular period or time. If the question was as to when a particular person did it must be proved by the person who asserts it. It may also be kept in mind that if Section 108 is applicable to the facts or" a particular case Section 107 can have no application at all. The two sections are, therefore, mutually exclusive to each other. As already stated Sections 107 and 108 both cannot apply to a particular case at the same time. If Sone Lal was alive i. 1942 presumption under Section 107 of the Evidence Act would be that he continued to be living thereafter. Since the plaintiff's specific case was that he had not been heard since 1942 when he joined Army, a preemption would and in favour of the plaintiffs that Sone Lal had died, it is established law that presump tion of this nature does not extend to the date from tae period when a person is said to be dead. However, Section 108 is not the only provision to be applicable and presumption from natural course of human conduct can also be raised and if there were circumstances it could be presumed that Sone Lal had died even during the period of seven years after 1942 itself. In this connection a reference may be made 1964 Alld. 310 wherein the question was about the death forelady who had left har home for Yalta 17 years ago in 1940 before the suit. Another relation of her died in the year 1945 and the question was whether the lady had died before or after the death of toe said relation. Relying on Section 108 of the Evidence Act, Oak, J, as he then was held as under; "But Section 108, Indian Evidence Act is not exhaustive on the question of presumption as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case. Suppose a man sails in ship and the ships sins. Therefore the minis never seen alive. Under such circumstances, it is reasonable to assume that the person died in the shipwreck. When a person goes for pilgrimage he or she ordinarily returns home in six months or in a year. In the present case Smt. Rukmini left for Gangisagar Yatra 17 years ago sine then she has not been heard of. It is reasonable to assume that she died in some accident or some disease during the journey or at Gangasagar. Shi appears to have left about the year 1940. We may presumably assume that she probably died by 1941 or 1942 in connection with her pilgrimage. There is evidence to the effect fiat Deo Singh died about 1945. If tie plaintiffs estab lished circumstances indicating Smt. Rukmini's death by 1942, and further proved that Deo Sing died in 1945 they have proved their case. The Revenue Courts were justified in holding that Rukmini died during Deo Singh's life-time." In the instant case the said Sone Lal had joined Army in 1942. The Court can take judicial notice of the fact that Second World War was at its peak during that period and it came to an end only sometimes the year 1944 or 1945. Admittedly, plaintiffs are real brothers of the said Sone Lal and persons who should normally have head of him. Thedhput: is only about a few trees to which they claimed-d title is successor of Son's Lal. The stakes are not so he ivy as to bad the plaintiff's to claim that Sone Lal was dead falsely. In the circurntiness it can reasonably be presumed that Sone Lal had most probably been killed during the war The view of the lower app -.Hate Court that in the case of any soldier dying during the war some kind of information ii certainly sent to the family members, may be true to an extent bat it is not necessary that merely because such an information was either not seat or was not received by the plaintiffs the Court should presu me that Sone Lal had not been killed during the war. Many persons killed in war go unnoticed and intimation regarding death is not sent unless the authorities are presumably certain of the death of a particular soldier. In the case of doubt the soldier is merely placed on 'missing persons list. To mi it appears that the entire approach of the lower appellate Court has not been correct. The Court hid not first assessed as to whether there was any evidence on the record to SIOM that the persons who actually should have heard of Sone Lal had not heard of him for more than seven years and when on a consideration of such evidence the Court had come to the conclusion that such a presumption could be raised then it should have considered the evidence of the defendants in order to see whether Sone Lal was proved to b j alive on the date when the document is said to have been executed. THIS procedure has not been adopted by the Court and has thus committed an error of law in appreciating the evidence. Proof of death of Sone Lal was not required in case the Court was satisfied, under Section 108, Evidence Act, of the death. I have been taken through the evidence on the record. The plaintiff's evidence clearly proves that they have not heard of Sone Lal ever since he joined the Army in 1942. THIS evidence is enough to shift the burden on defendants to prove that Sone Lal was alive and that Sone Lal infect had exe cuted the sale- deed in question. According to the defendant Sone Lal was alive and he has even mentioned the various places where he lived. Strangely, the defendants never took any steps to summon him as a witness. Under Sec tion 114, Evidence Act, a presumption against defendants can be raised from non-production of Sone Lal as witness. It is not the defendant's case that Sone Lal has died after 1960, Under these circumstances, I find force in this appeal and it is accordingly allowed. The parties are, however, directed to bear their own costs of this appeal.