SADHU SINGH Vs. TARO

JUDGEMENT

(1.) This revision is filed against the order of the learned Sub Judge, IIIrd Class, Tarn Taran, dated 14.9.1993 allowing the application filed by the plaintiffs to amend the plaint.

(2.) The plaintiffs filed the suit for possession of the suit land claiming that they inherited the suit property from Balwant Singh being his sisters. In the written statement, the defendants took the plea that Balwant Singh had a son by name Kashmir Singh, therefore, the plaintiffs are not the successors in interest of Balwant Singh. To controvert this statement in the written statement, the plaintiffs are seeking to take up the plea that the son of Kashmir Singh was not heard for more than 7 years and, therefore, there is no other legal heir to the said Balwant Singh. Admittedly, Balwant Singh died on 2.3.1989. The learned trial Judge allowed the application for amendment and permitted the plaintiffs to amend the plaint taking the plea that Kashmir Singh son of Balwant Singh has not been heard of for 7 years. This plea does not alter the nature and character of the suit. The suit has been filed on the basis that the plaintiffs are the legal heirs of Balwant Singh and they succeeded to his property after his death on 2.3.1989.

(3.) Learned counsel for the petitioner argued that the suit is barred on the date of the application for amendment. Therefore, the amendment could not have been allowed but the fact remains that the plaintiffs are not seeking as the legal heirs of Kashmir Singh son of Balwant Singh. The suit is based on the basis of inheritance to the estate of Balwant Singh and there is not dispute of the fact that the suit is filed within 3 years from the date of death of Balwant Singh. The only plea that the plaintiffs are now seeking is that Kashmir Singh son of Balwant Singh was not heard for 7 years, therefore, there is a presumption of his death. The presumption under Section 108 of the Evidence Act will not extend to the date of death. The onus of proving the date of death of Kashmir Singh lies on the person asserting the right. The presumption does not extend that Kashmir Singh dies on any particular moment of that period. In this connection reference may be made to the decision of this Court in lshari v. Gahia, A.I.R. 1975 P&H 222. It is observed by the learned trial Judge that both the parties adduced evidence regarding the death of Kashmir Singh. It is for the trial Court to decide whether the plaintiffs succeeded to the estate of Balwant Singh or not. As already observed, the amendment does not alter the character of the suit. In this view of the matter, I do not find any ground warranting interference with the order of the trial court allowing the amendment. It is always open to the defendants-petitioners to take the plea that the suit is barred by time and that the plaintiffs have no cause of action and that they have succeeded to the property of Balwant Singh.