Kashmiri and another vs Mst.Durgi and others

There is a copy of the pedigreetable on the file of the trial Court which will show how the parties stand related to one another. We do not propose

to refer to it as it has been admitted that in the absence of any statutory bar the plaintiffs are entitled to their alleged share of the holding like the

defendants who are in possession. The trial Court held the suit of the plaintiff not having been instituted within the statutory period of 12 years

commencing from the demise of the common ancestor Sangara as barred by time. The lower Court of appeal, Additional District Judge, Jammu,

has upheld this finding. He has also referred to the fact that it is for the plaintiff to show that they come into Court within 12 years of the demise of

Sangara and that there is nothing on the record to show when Sangara died.

The trial court rightly remarked that under Section 108 of the Evidence Act, the not hearing of any person for a period of seven years rises a

presumption of his death when the question in issue is whether he is alive or dead, and that there is no further presumption permissible as to the

date of the death. This fact when in dispute must be established by evidence like any other fct in issue.

As recorded above Sangara is recorded, or at least was until 24th Assuj 1977, in the revenue papers as an owner, absentee and out of

possession. It seems on a perusal of the extracts from the record of rights of the village filed in the trial Court that on 8th Magh 1892 it was

represented by Hakim, who was then recorded as being in cultivating possession of the holding, that it really belonged to Dayala and Sangara.

Dayala died about five years ago and Sangara is absent and unheard of. Hakim desired that Sangara may be entered as an absent owner and he as

one in possession. This, as recorded above, was sanctioned on that day and entry in the column of ownership was accordingly mutated. It should

be noted that at that time Hakim never claimed the holding for himself in exclusive right and that his prayer was confined to Sangara being

described as an absentee. Without going into any details regarding the rights of absentees in case of return within a specified time it is plain that this

conduct of Hakim cannot be regarded as setting up any title adverse to Sangara. Further, at that time it was never alleged that Sangara may be

presumed to be dead for if such an allegation had been made the aforementioned prayer could not have been made and granted. The rights of

Sangara, whatever they were, were admitted and it is to a claim to these that the present suit relates. After the demise of Hakim the mutation was

sanctioned on 28th Baisakh 1963. A copy of these proceedings is on the file. It is interesting to note that it was ordered that in place of Hakim

deceased the name of his widow Mussammat Thakri be substituted and that in the column of cultivation the name of Lochan be entered who is her

deceased husband's brother. Curiously enough we find that name of Lochan entered in the column of ownership and not in that of cultivation. This

mutation order is No.32/26 of village Naran in the Jasmergarh Tehsil of Wazarat Kathua. The important point, however, to note is that the name of

Sangara still continued. It was after the demise of Mussammat Thakri on 21st Bhadon 1981 that the Assistant Settlement Officer sanctioned the

striking off of the name of Sangara and the name of Lochan was entered in his place.

The question for determination is whether in these circumstances, and in the absence of the poof of the date of the death of Sangara it can be said

that the present suit is barred by time. It was stated before us that Lochan asserted his exclusive right on 24th Assujn 1977 when presumably a

report was made on the mutation papers on which the aforementioned order of Assistant Settlement Officer was passed. From that time the suit

which was instituted on 21st Bhadon 1989 is within time. It is plain that the plaintiffs had no claim to the property in dispute during the lifetime of

Sangara. Sangara was presumed to be dead on 4th Assuj 1977. There is nothing on the record to show that he died on a date prior to that and the

lower Courts have taken right view in holding that the date of death must be proved by the person wishing to take the benefit of the same. There

being no proof of the date of death of Sangara all that can be presumed is that he was dead on the day on his death was presumed in accordance

with the statutory presumption of Section 108 of the Evidence Act The previous possession of Hakim and his widow Mussammat Thakri was not

adverse to Sangara and so it could not be adverse to the plaintiffs. As a result of this view the claim cannot be held to be barred by time. It is not

necessary now to discuss whether or not at any time during this period any of the plaintiff cultivated any field forming part of this holding as a tenant

under Lochan or Hakim. That would not at all affect the question of limitation. We allow this appeal, set aside the decree passed and remarked the

case to the trial court for a fresh decision on the facts according to law in the light of the observations made above. Costs shall follow the event.