Tutun De And Ors vs The Collector
2022 Latest Caselaw 6701 Cal

                                                SA 138 of 2022
Item 9.                                         CAN 1 of 2022
          19-09-2022

  sg
            Ct. 8
                                            Tutun De and Ors.
                                                   Versus
                                 The Collector, District North 24 Parganas


                            Mr. Kartick Kumar Bhattacharyya, Adv.
                            Mr. Narayan Chandra Das, Adv.
                            Mr. Dharmadas Hazra Choudhury, Adv.
                            Mr. Subrata Sanyal, Adv.
                            Ms. Soumashree Dutta, Adv.
                                                       ...for the appellants

                            Ms. Sutapa Sanyal, Adv.
                            Ms. Susnita Saha, Adv.
                                                          ...for the respondent

The appeal and the connected application are taken up

together and disposed of by this common order.

The appeal is directed against the judgment and decree dated

21st April, 2021 by affirming the judgment and decree dated 3 rd

September, 2018 passed by the trial court in a suit for declaration

that Ashutosh Mukhopadhyay has suffered a civil death.

The learned trial court, after taking into consideration the

paper publication, refused to grant a decree in favour of the

appellants, who are the legal heirs of Ashutosh Mukhopadhyay in

absence of any missing diary contemporaneously lodged.

The appeal court confirmed the said judgment and decree by

observing that in view of the judgment of this Court in Koushik

Hati vs. Madhuri Hati & Anr. reported in 2015 SCC OnLine Cal

8238 that in absence of a missing diary and publication in

newspapers for wide circulation, no decree can be passed in a suit

for declaration that the person is not alive. In short the decree for

civil death cannot be passed unless the aforesaid twin

requirements are satisfied. Further ground was that a claim for

declaration may not be maintainable as the plaintiff failed to

substantiate that their right, title and interest over the property are

denied by others.

During the pendency of the appeal, the respondents

appeared and produced a copy of the missing dairy. Consequent

there upon, an application was filed by the appellants for

amendment of the plaint. We also allowed the said amendment at

the appeal stage and invited written statement from the

respondent. In the amended plaint, it has been specifically stated

that after the death of Makhanlal Mukhopadhyay the properties

are to be distributed between the six sons equally. During the

lifetime of Makhanlal, Ashutosh Mukhopadhyay, one of the 6

sons, went missing since 11th March, 1986. He was bachelor

leaving behind no heirs, successors or legal representative save

and except his five brothers, who are the plaintiffs in the suit. The

properties in question were not partitioned. Immediately, after the

missing of Ashutosh, a missing diary was lodged and GD entry

was made by the police station concerned. The said entry was kept

under the custody of Shankar Prasad Mukhopadhyay. However,

the said document could not be produced at the time of trial in

order to obtain information.

An application under the Right to Information Act, 2005

was made and in respect thereto, the respondents have

acknowledged that a missing diary was lodged,

contemporaneously which is admitted in the letter dated 3rd

January, 2019. It was further alleged that the cause of action arose

on 11th March, 1996. It is further stated that in spite of knowledge

of such civil death, the Municipal authorities are refusing to

acknowledge the said fact and denying the right of his brothers

and other legal heirs to mutate their names in the relevant records.

The learned Counsel for the respondent has filed a written

statement in the form of affidavit. There is no denial of the fact

that a paper publication was made after Ashutosh went missing

and also a GD entry was made by one of the brothers. These are

the twin requirements which are relevant for the purpose of

considering a prayer for declaration of civil death of a person.

There is no doubt with regard to the newspaper publication

or the GD entry made. The police could not traced out the missing

person. Moreover, we find that the Municipal authorities are

refusing to acknowledge the plaintiffs as the legal heirs or

representatives of Ashutosh as the properties would have been

devolved upon them in absence of Ashutosh. The evidence on

record clearly proves that Ashutosh Mukhopadhyay was not heard

of after seven years from the date of his missing and he has not

been heard of for seven years by persons who would naturally

have heard of him if he had been alive. The appellants have fully

discharged their burden.

Considering the projection of the additional evidence, the

impugned orders are set aside. It is hereby declared that Ashutosh

Mukhopadhyay, son of Makhanlal Mukhopadhyay is presumed to

be dead after 10th March, 1993 i.e. seven years after he went

missing i.e. 11th March, 1986.

On such consideration the suit is decreed.

The department is directed to dray up decree as early as

possible.

CAN 1 of 2022 stands also disposed of.

(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)