Mansinh Amarsinh Devdhara vs State Of Gujarat
2022 Latest Caselaw 5177 Guj

     C/SA/315/2021                                JUDGMENT DATED: 15/06/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 315 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER Sd/-

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      MANSINH AMARSINH DEVDHARA
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR DIGANT M POPAT(5385) for the Appellant(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 15/06/2022

                            ORAL JUDGMENT

1. This Second Appeal is preferred under Section 100

of the Code of Civil Procedure against the judgment and th decree passed by the 6 Additional District Judge, Surat

in Regular Civil Appeal No. 53 of 2018, whereby the

C/SA/315/2021 JUDGMENT DATED: 15/06/2022

appeal filed by the appellant who is original-plaintiff,

came to be dismissed and the judgment and decree

passed by the learned Senior Civil Judge, Surat in

Regular Civil Suit No.385 of 2012 came to be confirmed.

2. The appellant is the original-plaintiff and the

respondent is the original-defendant before the learned

Trial Court. For the brevity and convenience, the

parties are referred to in this Judgment as per the

status assigned to them before the Trial Court.

3. The plaintiff has filed the suit for declaration to the

effect that his son, Jitendrasingh Mansingh Devdhara

was missing from Surat since 31.01.1984 and could not

found till the date of filing of the suit. It is alleged

that necessary janvajog entry dated 05.02.1984 came to be given by Takhatsingh M. Devdhara before the Rander

Police Station and the public notice in daily newspaper

regarding missing of Jitendrasingh was published on

07.02.1984. According to the plaintiff, since the date of

missing of his son, he has not heard any news about his

missing son and about his aliveness. Therefore, the

plaintiff has filed suit for declaration that his son has

died and necessary entry to that effect may be made by

the Surat, Nagarpalika in its record and for passing

C/SA/315/2021 JUDGMENT DATED: 15/06/2022

decree in his favour.

4. It appears that no written statement has been filed

by the defendant in the Trial Court. The Trial Court

has framed issues at Exh. 21 in vernacular language,

which on translation would read as under :

(i) Whether the plaintiff proves that his son

Jitendrasingh Mansingh Devdhara is missing

from 31.06.1984 and he could not be found?

(ii) Whether the suit is barred by the law of

limitation?

                (iii) Whether the plaintiff is              entitled         for the

                relief        sought for?

                (iv)     What order and decree?

5. On the basis of the oral and documentary evidence

on record and after hearing the learned advocate for the

parties, the learned Trial Court has answered Issue

Nos.1 and 2 in Affirmative and Issue No.3 in Negative

and ultimately dismissed the suit only on the ground of

delay, vide judgment and decree dated 27.10.2016.

Against that judgment and decree, the plaintiff has

preferred Regular Civil Appeal No.53 of 2018 before the

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District Court Surat, which has ultimately dismissed the

appeal on the ground of delay.

6. The main contention of the plaintiff is that the

both the Courts below have committed serious error of

law in dismissing the suit only on the ground of

limitation. It is contended that the plaintiff has

successfully proved his case by adducing evidence to the

effect that plaintiff's son after leaving from home on

31.01.1984 for the purpose of attending college, never

returned. That the plaintiff has produced the evidence

with regard to the information of missing report being

given to the concerned police station and thereafter,

taking follow-up action for the same.

6.1. It is also contended that Police Machinery has miserably failed to take appropriate steps and ultimately

the plaintiff having lost a young son was left with no

other option to approach the learned civil court seeking

declaration with a view to see that no illegitimate claims

are made relating to his properties after such a long

time.

6.2. It is contended that the view taken by both the

Courts below regarding limitation is wrong applicability

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of law of limitation. The Plaintiff has raised several

questions of law in this appeal. However, this appeal

has been admitted only on the following questions of

law:

"In the facts and circumstances of the case, whether the Courts below are justified in dismissing the suit only on the ground of limitation?"

7. Heard learned advocate Mr. D.M. Popat for the

plaintiff-appellant and learned AGP Mr. Adityasinh

Jadeja for the respondent-State. Perused the material

placed on record and decisions cited as bar.

8. My findings on the above question, for the reason

given below, is as under :

Point No.1           : In the Affirmative.



                                Reasons

9.     Learned       advocate Mr. D.M. Popat for the plaintiff

- appellant has submitted that both the Courts below

have committed serious error of law in dismissing the

suit and appeal only on the ground of law of limitation.

He has submitted that plaintiff was awaiting for return

of his son for a long time as he could not have any clue

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of his aliving and Police could not find out him.

Ultimately, the plaintiff has filed the said suit for

declaration, which has not been contested by the

defendant.

9.1. He has submitted that considering the facts and

circumstances of the case, the law of limitation is not

applicable and therefore, the impugned judgment and

decree of both the Courts below needs to be set aside

and necessary decree in favour of the plaintiff needs to

be passed.

9.2. Mr. Popat has relied upon the decisions rendered in

the case of LIC OF INDIA v. ANURADHA reported in

(2004) 10 Supreme Court Cases 131.

10. Learned AGP Mr. Adityasinh Jadeja for the

respondent - defendant has submitted that considering

the facts and circumstances of the case, appropriate

order may be passed.

11. Having considered the averments made on behalf of

the both the sides coupled with the material placed on

record, it clearly transpires that the plaintiff has filed

the suit for declaration to the effect that his son viz.

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Jitendrasingh is missing since 31.01.1984. It is pertinent

to note that the pleading of the plaintiff has not been

denied by the defendant by filing any written statement.

On perusal of the material placed on record, it is clearly

found that during the trial, the plaintiff has produced

necessary documentary evidence showing that necessary

Report of missing Jitendrasingh has been made to the

concerned Rander Police Station on 05.02.1984 and on

public advertisement was issued in the Newspaper dated

07.02.1984. It also reveals that the evidence of plaintiff

has not been controverted by the other-side. It also

reveals that the plaintiff has approached Police under

R.T.I. Act and got reply from the Rander Police Station

to the effect that due to flood in the year 2006 all

documents of 1981 to 2001 was destroyed in the flood.

Therefore, no other relevant documents pertaining to the report of his missing son is available. The plaintiff has

waited for returning of his son since he could not return

back and even Police could not find him out.

Ultimately, he has filed the suit for declaration.

12. It appears from the impugned judgment of the

Courts below that they have relied upon Section 108 of

the Evidence Act for their observations that the suit is

barred by law of limitation. At this juncture, it is

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worthwhile to reproduce Section 108 of the Evidence Act:

"108. Burden of proving that person is alive who has not been heard of for seven years.--1[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.--1[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."

13. Section 108 of the Evidence Act clearly provides

only for raising presumption. It is a limited presumption

confined only to presume the factum of death of the

person who's life or death is in issue. There is no

presumption as to the facts and circumstances under

which the persons may have died. The only inference

permissible to be drawn and based on the presumption

is that the man was dead at the time when the

question arose, subject to a period of seven years

absence, and being unheard of having elapsed before that

time. At what point of time the person was dead is not

a matter of presumption, but of evidence, factual or

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circumstantial, and the onus of proving that the death

had taken place at any given point of time or date since

the disappearance or within the period of seven years

lies on the person who stakes the claim, the

establishment of which will depend on proof of the date

or time of death.

14. Recourse to the provision of Section 108 cannot be

made for deciding starting of point of cause of action,

as when any member of family is missing, for whatever

reasons, the other members of the family will definitely

waiting for return of such missing person. Such waiting

period may be ever for decades. There cannot be any

assumption or presumption that after certain period of

time, the family members would automatically consider

that the missing person has died on a particular date or

within a particular point of time. Therefore, if father is

waited for returning of his son before previous day of

filing of the suit, it cannot be held that limitation period

has started after seven years of date of missing of his

son. The entire approach as adopted by both the Courts

below in deciding the question of limitation is completely

erroneous. They have lost sight of the facts that it is a

human tendency to wait for returning of a missing

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member of the family for many years. Therefore, in the

suit for declaration of the fact that the person be

declared as a dead since he is missing for many years

cannot be based upon the presumption or assumption

arose under Section 108 of the Evidence Act.

15. Admittedly in the present case, the young son was

missing and appropriate information was provided to the

police and even by advertisement in the newspaper and

yet the Police could not find out him nor the missing

son returned back to the family. Under these

circumstances, if the father has waited for many years

for returning of his son, his claim for declaration cannot

be turned down solely based upon the presumption under

Section 108 of the Indian Evidence Act. The cause of

action for declaration of death of such missing son would

arose, as and when, it is admittedly believed by the

father and the family members that he might be dead.

Therefore, under the facts and circumstances of this case,

it clearly shows that the suit is not barred by the law

of limitation. The entire approach of the learned Trial

Court as well as the learned Appellate Court are not

sustainable in the eyes of law. Therefore, the judgments

and decrees passed by both the Courts below need to be

set aside and the suit of the plaintiff deserves to be

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allowed. Therefore, I have decided point No.1 in

affirmative accordingly.

16. In view of the above, I pass the following final

order in the interest of justice:-

The present Second Appeal is hereby allowed. The th judgment and decree passed by the learned 6 Additional

District Judge Surat in Civil Appeal No. 53 of 2018 and th judgment and decree passed by the 9 Additional Senior

Civil Judge, Surat in Regular Civil Suit N0.385 of 2012

are hereby quashed and set aside.

The suit of the plaintiff is allowed in toto and it is

declared that the plaintiff's son Jitendrasingh Mansingh

Devdhara is deemed to have been died on 31.01.1984.

Necessary entry regarding his death to be made in the

relevant Register by the defendant.

Considering the facts and circumstances of the case,

the parties are directed to bear their respective costs of

all the proceedings.

Decree to be drawn accordingly in the Second

Appeal.

C/SA/315/2021 JUDGMENT DATED: 15/06/2022

With the copy of this judgment and decree, R & P

be sent back to the learned Trial Court.

Sd/-

(DR. A. P. THAKER, J) KUMAR ALOK