Gokul Pandey And 2 Others vs Gram Pradhan Gram Sabha Vill. ...
2022 Latest Caselaw 1890 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 25.04.2022
 
Delivered on 04.05.2022
 
Court No. - 10
 
Case :- SECOND APPEAL No. - 957 of 2017
 
Appellant :- Gokul Pandey And 2 Others
 
Respondent :- Gram Pradhan Gram Sabha Vill. Bhabnauli Pandey And Anr.
 
Counsel for Appellant :- Sheo Shankar Tripathi,Adya Prasad Tewari
 
Counsel for Respondent :- Girish Vishwakarma,Tariq Maqbool Khan
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri A.P. Tewari, learned counsel for the appellant and Sri P.K. Giri, learned Additional Chief Standing Counsel for the respondents.

2. This is plaintiffs' appeal under Section 100 of Code of Civil Procedure (in short "CPC") against the judgment and decree dated 04.08.2017 passed by Additional District and Sessions Judge/Special Judge (Gangster Act), Court No.8, Deoria in Civil Appeal No.45 of 2016 arising out of judgment and decree dated 22.11.2016 passed by Additional Civil Judge (Junior Division), Court No.24, Deoria in Original Suit No.983 of 2007.

3. The facts, in brief, are that the plaintiffs-appellants filed a declarator suit against the defendants-respondents for declaring them as the legal heirs of deceased Markandey Pandey and also for declaring Markandey Pandey as dead.

4. The plaint version is that, on 12.10.1996, Markandey Pandey left the home to visit Vaishno Devi Temple, but when no whereabouts were heard by the family members, a report of missing person was given to the concerned police station. Further, as the whereabouts of Markandey Pandey was not heard for 7 years and the defendants were not passing orders for entry in the revenue records of the plaintiffs-appellants, Original Suit No.983 of 2008 was filed.

5. The aforesaid suit was contested by the defendant no.2, who filed his written statement and denied the allegations. It was further stated that no first information report has been lodged nor any publication in newspaper has been made regarding missing of Markandey Pandey. The trial Court framed the following issues:-

"01- क्या वादीगण वाद पत्र में उल्लिखित कारणों के आधार पर उदघोषणात्मक ब्यादेश का अनुतोष पाने का अधिकारी है ?

02- क्या वाद अवमूल्यांकित है ?

03- क्या अदा न्याय शुल्क अपर्याप्त है ?

04- क्या न्यायालय को मामले की सुनवाई के क्षेत्राधिकार नहीं है ?

05- क्या वाद आदेश 7 नियम-11 सि० प्र ० सं ० से बाधित है ?

06- अन्य कोई अनुतोष ? "

6. The trial Court, while deciding issue no.1, held that no first information report has been brought on record and only through Paper No.23-Ga, an application given to the police station was filed. The Court held that it had no jurisdiction to declare the plaintiffs as the successors of Markandey Pandey and thus, dismissed the suit.

7. Against the said judgment, a Civil Appeal No.45 of 2016 was preferred and the lower appellate Court dismissed the appeal on the ground that notice under Section 80 (2) CPC was not given before the filing of the suit and there was technical error in the filing of the suit and thus, appeal was dismissed on 04.08.2017, hence the present appeal.

8. I have heard learned counsel for the parties and perused the material on record.

9. The plaintiffs-appellants filed suit for declaring them to be the legal heirs of Markandey Pandey who was missing since 12.10.1996 and further sought that Markandey Pandey be declared dead.

10. Section 34 of the Specific Relief Act provides for the declaratory decrees for which any person is entitled to. Section 34 of Specific Relief Act, 1963 is extracted hereasunder:-

" 34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."

11. From the bare perusal of the above provision, it is clear that a suit for declaration could be filed by any person for the following objects (a) for his or her legal character, (b) for any right as to any property. Thus, it is clear that a suit for declaration may be instituted for declaring status or legal character which a person/party may be entitled to. However, in a suit for declaration of a civil death of another person, plaintiff is not entitled to such legal character under Section 34 of the Act. It is because that a suit has been brought for legal character for another person and not of the plaintiff.

12. Section 34 clearly provides that any legal character may be declared for which a plaintiff is entitled. Besides this, he should not be stranger to a dead person, but he must be interested in such legal character, may be as his legal heirs. The suit filed at the instance of plaintiff can be contested by anyone, denying or interested to deny his title to such character or right. Section 34 of the Act further bars any such declaration where the plaintiff is able to seek further relief. Legal character is a position recognised by law. A person's legal character is the attribute which law attaches to him. After death of a person his heirs, having interest in such legal character, have title to seek declaration of such legal character as to the death of the person. The suit at the instance of any such person for a declaration is maintainable, if he can stand the test that he is entitled to any legal character, even though, he cannot lay to immediate claim to any property.

13. In most of the case, the defendants almost accept the fact of missing of a person for whom declaration of civil death is sought, therefore, absence of denial from the side of defendants bars the relief sought. A mere suit of declaration of death of a person is not maintainable. Section 107 and 108 of the Evidence Act are regarding missing of person. Relevant Sections 107 and 108 of Evidence Act are extracted hereasunder:-

"107. Burden of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years.- [Provided that when] the question is 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 have heard of him if he had been alive, the burden of proving that he is alive is 2[shifted to] the person who affirms it."

14. Evidence Act is procedural law and doesn't create any substantial right or obligation. It only facilitates the Court in trial and the above provision comes under the Chapter (burden of proof). From the reading of above provision, it is clear that they come into play only when question arises, whether a man is alive or dead. Section 108 only provides for the circumstances on which onus of proof shifts upon the person who claims that a person is alive for whom no one had heard for seven years. Moreover, it is established principle of law that presumption under Section 108 would be raised in any proceeding.

15. Thus, in a suit filed for declaration by plaintiff claiming himself to be the legal heir of a person missing, the Court can take presumption of death of a missing person under Section 108 of the Evidence Act. The Apex Court in LIC of India Vs. Anuradha, 2004 (10) SCC 131, while dealing with the scope of Sections 107 and 108 of the Evidence Act held that presumption as to death by reference to Section 108 would arise only on lapse of seven years. Relevant para 14 is extracted hereasunder:-

"On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Section 107 and 108 the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 108 ceases to operate. Section 108 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise."

16. In Sanju Devi and others Vs. State and others 2014 SCC Online Delhi 65, the Court held that proceedings under the Indian Succession Act, 1925 are summary proceedings and the petitioner has to file a civil suit to establish the factum of death and then claim the decree accordingly from the civil Court.

17. In Smt. Alka Sharma and others Vs. Union of India and others, Second Appeal No.192 of 2007, decided on 17.01.2020, this Court while deciding question of law framed in the appeal as "whether in view of Section 108 of Evidence Act, 1872 for proving a civil death of a person who is reported to be missing and is not traceable for over seven years, submission of final report by police is mandatory?" This Court held that submission of final report by police is not mandatory inasmuch as police investigation is in the domain of criminal law and that is neither influenced by plaintiff claiming declaration nor is within the authority and control seeking such declaration. Once, the factum of lodging of report and not hearing about that person for seven years or more is proved and admitted by the defendants in regard to whom declaration is being sought is sufficient then requirement of Section 108 of the Evidence Act has been fulfilled.

18. In the case in hand, the relief sought in the suit was for declaring the plaintiffs as the legal heirs of deceased Markandey Pandey against the defendants and also for declaring Markandey Pandey as dead. The contesting State in its written statement has denied the averment of the plaint, while the trial Court while deciding the issue no.1 had recorded finding that DW-1, Vishwakarma Sharma, the Lekhpal in his examination-in-chief had stated that Markandey Pandey is not heard for last ten years and he has not seen him for the said time.

19. Moreover, Paper No.23-Ga was filed before the trial Court to prove the fact that missing report of Markandey Pandey was given to the police. The trial Court had wrongly held that it did not have the jurisdiction to grant such declaration.

20. The lower appellate Court while recording the finding that the suit for declaration under Section 34 of the Specific Relief Act, though, being maintainable, the relief could not be granted as no notice under Section 80 (2) CPC was given to the defendants being the State and, on the basis of technical error dismissed the appeal.

21. From the perusal of the judgment of the trial Court as well as the appellate Court, it is clear that Paper No.9-C and 10-C were brought on record which were the notice given by the plaintiffs under Section 80 CPC and Section 106 of Panchayati Raj Act, 1947, the finding recorded is totally against the material on record. Thus, I find that both the trial Court and the lower appellate Court committed error in dismissing the suit and the appeal, thus, finding recorded by both the Courts below are against the material on record as well as the provisions of law and are, thus, set aside.

22. Thus, considering the facts and circumstance of the case, I find that the suit filed by the plaintiffs as to the legal character that they may declared as the legal heirs of Markandey Pandey being the sons and wife of the deceased and Markandey Pandey be declared dead, was very well maintainable before the trial Court. Both the Courts below fell into trap of holding that the suit as well as the appeal was not maintainable.

23. The judgment and decree passed by the lower appellate Court dated 04.08.2017 and judgment and decree dated 22.11.2016 passed by the trial Court is, hereby, set aside. The suit filed by the plaintiffs-appellants seeking relief of declaration as the legal heir of deceased Markandey Pandey stands decreed.

24. In view of the above, as the the judgment and decree of both the Court below having been set aside, the second appeal stands allowed.

Order Date:- 04.05.2022

SK Goswami

[Rohit Ranjan Agarwal, J.]