Shanti Devi w/o Sh. Mani Ram vs General Public

This Civil First Appeal under sec.96 CPC has been filed

against judgment & decree dated 15.04.2011 passed by Additional

District Judge, Bhadra in Civil Suit No.27/2010 ( Shanti Devi v.

Public ), whereby suit of appellant-plaintiffs was dismissed.

Briefly stated, plaintiff-appellants filed a suit whereby it was

stated that Mani Ram was missing on 20.08.1994 and thereafter

nobody has given any information as to living status of Mani Ram

and therefore, Mani Ram has died in the eye of law and the

plaintiff-appellants sought declaration that the plaintiffs are

successors of Mani Ram. On filing the suit, notices were issued to

general public and objections were invited but no objection has

been filed and therefore, the trial court proceeded to decide the

suit ex parte.

During the trial, plaintiff-appellants were examined in the

witness box and thereafter, after hearing the plaintiff-appellants,

the trial court dismissed the suit by way of judgment & decree

dated 15.04.2011.

Being aggrieved by the judgment & decree dated

15.04.2011, the appellants have preferred this appeal on various

grounds. It was contended that the trial court has failed to

consider the evidence produced by the plaintiff-appellants and

from bare perusal of the evidence, there is no reason to dismiss

the suit because plaintiff-appellants produced proper evidence

regarding missing of Mani Ram on 20.08.1994 and thereafter, the

appellants have not got any information about Mani Ram and it

will be legally presumed that he has died. The trial court has not

considered appropriate evidence and without any legal foundation

or conclusion dismissed suit of the plaintiff-appellants. It was also

contended that viewing from the judgment & decree, it is clear

that it was passed in very arbitrary manner and the findings given

by the trial court are on basis of probability, which is not

sustainable in law and deserve to be set aside.

In the context of arguments raised by the appellants,

perused the evidence and documents placed on record.

On perusal of the evidence, it is found that no documentary

evidence has been placed on record regarding missing of Mani

Ram s/o Sahi Ram. Neither any FIR was lodged regarding missing

of Mani Ram s/o Sahi Ram nor any missing notice has been

published in the newspapers nor any documentary evidence has

been placed on record, from which it can be inferred that any

correspondence made in this regard with the persons who were

relatives of the missing person or any other person who are

known to the missing person.

So far as the question of presumption under sec.108 of the

Evidence Act is concerned, it is on the plaintiff-appellants to prove

that every effort was made to search whereabouts of the missing

person by way of lodging FIR or by way of issuing public notice in

newspapers or by leading evidence that no relative of the missing

person has heard of Mani Ram about his living status for last 7

years. In absence of relevant evidence, there can not be any

presumption drawn in this respect as provided under sec.108 of

the Evidence Act .

There is no ground of interference in the judgment & decree

dated 15.04.2011 passed by the trial court. The appeal is devoid

of merit and is hereby dismissed.