P L D 1988 Supreme Court 682 (PLP)

SHAFIUR RAHMAN, J.‑‑The plaintiffs/appellants were granted leave to appeal against the judgment dated 22‑4‑1987 whereby for the second time a Revision Petition filed by them was dismissed. The appellants happened to be distant collaterals of one Sher Muhammad who was owner of agricultural land measuring 55 kanals 16 marlas in village Dhoke Boda, Tehsil Chakwal, District Jhelum. On the 21st of December, 1976 his mutation of inheritance No.254 was attested taking him to be dead as he had not been heard of by those concerned for the last over 26 years. The appellants were excluded from the inheritance and Lal the predecessor‑in‑interest of respondents who was nearer in degree was shown as his heir though it was admitted that Lai had also died on 6‑10‑1976. In this background of facts the Appellants as plaintiffs instituted a Civil Suit on 13‑6‑1977 claiming to be heirs of Sher Khan to the exclusion of Lai Khan who according to them had pre‑deceased Sher Khan. They sought a declaration that Sher Khan having not been heard of for last 26 years should be presumed to be dead and that Lai Khan having died on 6‑10‑1976 i.e. before the presumed death of Sher Khan should be excluded from inheriting him and instead they should be declared the owners as heirs of the share possessed by Sher Khan. The suit was contested and the following issues were framed on the pleadings of the parties:‑ (1) Whether the plaintiffs are not in possession of the disputed property? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the plaintiffs are the legal heirs of the deceased Sher Khan, if so what are their shares? OPP. (4) Whether the plaintiffs have got no cause of action? OPD. (5) Whether the present suit is false and vexatious and the defendants are entitled for the special costs under section 35‑A of C.P.C.and to what amount? OPD (6) Relief. The property being joint, the appellants/ plaintiffs were held to be in possession of the disputed property and the suit maintainable in the form in which it was filed. On merits it was held that the plaintiffs had failed to establish that Lal Khan had pre‑deceased Sher Khan and on that account excluded from inheriting him. Presumption of death of Sher Khan was based on the evidence on record but not of Lal Khan having pre‑deceased him. On these grounds the suit was dismissed. The defendants were not found entitled to special cost. The parties were left to bear their own costs. On appeal, the learned District Judge affirmed the findings and dismissed the appeal with costs. A second appeal was then filed by the appellants which came up on 27‑3‑1985 and after hearing Sakhi Muhammad it was dismissed on the ground that no second appeal lay by virtue of amendment of section 102, C . P . C . made by Law Reforms Ordinance since 13‑4‑1972. The appellants had shown the jurisdictional value of their suit to be Rs.11039.80. The appellants filed a Civil Revision on 1‑6‑1985 against the same judgment and decree of the appellate and trial Courts dated 19‑6‑1979 and 11‑3‑1979 respectively. This Revision Petition was dismissed in limine on the ground of laches. The Appellants filed a Civil Petition for leave to Appeal in the Supreme Court against the dismissal of the Revision Petition and it was allowed alongwith other many similar Petitions and the High Court was asked to examine each case on merits in order to determine the propriety of exercising revisional jurisdiction. The matter was taken up by the High Court afresh and disposed of by the impugned order dated 22‑4‑1987. The learned Judge dismissed it once again giving the following two grounds for the order passed:‑ "(i) I consider myself incompetent to take up this case again on my file to pass any fresh order on the point. Moreso, because even the order dated 27‑3‑1985 passed in the RSA of the petitioners still stands intact. (ii) I have examined the judgment passed in the appeal below which appears to be well founded for the reason that a mere reliance by the petitioners upon the presumption available under section 108 of the Evidence Act cannot advance their case wherein they cannot succeed without proof of actual date of death of Sher Khan so that he could be considered to have died after Lal but such an evidence has admittedly not been led by any party. Concurrent findings recorded by the two courts below against the petitioners are unexceptionable. Actually, the petitioners do not have any case at all to urge on merits and much less any requiring interference by this Court." The appeal filed before this Court was initially found to be barred by time whereupon an explanation was called for from Mr. yasir Ahmad Sindhu, Advocate and after examining it by an order dated 28‑6‑1988, the delay in filing the appeal in this Court was condoned. Mr. Muhammad Munir Peracha, Advocate, the learned counsel for the appellants contended that the very fact that the mutation of inheritance of Sher Khan was attested on a date subsequent to the date of death of Lal and Sher Khan's death was on the basis of a presumption, Lal Khan should be taken to have pre‑deceased him, the dates of attestation of mutation of Sher Khan being 12‑12‑1976 and that of Lal Khan being 6‑10‑1976. Secondly, it is contended that when the plaintiffs/ appellants instituted the suit, the admitted position was that Sher Khan had not been heard of for the last 26 years or so and the presumption of his death would arise in any case when the suit was instituted and this fact was established, that the suit was instituted on 13‑6‑1977 and from that date also Lal Khan would appear to have pre‑deceased Sher Khan. It is conceded by the learned counsel for the appellant that the actual date of death of Sher Khan is not ascertainable from the evidence off the record and the reliance has to be placed on the presumptions arising out of the presumptions fully established. Sh. Zamir Hussain, Advocate, the learned counsel for the respondents on the other hand contended that he relies entirely on Section 102 of the Evidence Act which places the burden with regard to the date of death of Sher Khan on the plaintiffs and on the decisions of this Court in Muhammad Sarwar and another v . Fazal Ahmad and another (P L D 1987 S C 1) . It is contended that where the exact or approximate date of death is net established by evidence, the presumption of and the burden of proof provided in sections 107 and 108 of the Evidence Act cannot be availed of for showing that a particular person had pre‑deceased the person whose whereabouts were not known. The .plaintiffs/appellants having not led any evidence whatsoever it was not open to claim that Lal Khan has pre‑deceased Sher Khan. It is clear from the various rounds of litigation that had taken place in the form of Regular Second Appeal followed by a Revision and then a remand and re‑consideration of the same that the case of the appellants has received due consideration on merits as well as on the technical grounds of competence of the Revision. The ground which prevailed with the High Court on merits establishes that presumption arising under section 108 of the Evidence Act has not been considered sufficient in the circumstances of the case to advance the claim of the appellants* In re Phene's Trusts (V Chancery Appeals 139), the following law was laid down on the subject:‑ "If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption, but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.. There is no presumption of law in favour of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards." In the case of Lai Chand Marwari v. Mahant Ramrup Gir and another (AIR 1926 Privy Council 9) this point was clarified in the following words:‑ "It is constantly assumed that, where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This is not correct. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one "of not less than seven years". The Indian Supreme Court in a similar case, Gurdit Singh and others etc. v. Marsha Singh and others etc. (AIR 1977 S.C.640) while determining the question of limitation and the presumption arising under section 108 of the Evidence Act, held as follows:‑ "They had to prove affirmatively that the death of Kishan Singh took place within three years of the institution of the suits. The contention of counsel for the plaintiffs is, however, that Kishan Singh not having been heard of for more than seven years since 15‑8‑1945, a presumption of the factum of his death has to be drawn at the expiration of seven years from that date in terms of Section 108 of the Evidence Act. We find it difficult to accept this contention. Granting that Kishan Singh has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death tcok place at any particular time within seven years lies upon the person who claims a right for the establishment of which the proof of that fact is essential. The plaintiffs had not only therefore, to prove that Kishan Singh had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when Kishan Singh's death occurred. This they have miserably failed to prove. In the absence of such proof, it cannot be held that the present suits had been brought within three years of the accrual of the right to sue. We are supported in this view by a catena of authorities. In Nepean v. Doe d. Knight (1837) 2 N & W 894 = 7 LJ Ex 335, Lord Denman delivering the judgment of the Court observed:‑ "The doctrine laid down is, that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years; that if it be important to anyone to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of. Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances." Finally, in the case of Muhammad Sarwar and another v. Faaal Ahmad and another PLD 1987 SC 1, it was held that "sections 107 and 108 of the Evidence Act merely aim at regulating questions relating to the burden of proof and are not intended to fix the date of death which fact must be established through positive evidence. It is to be observed that the words "when the question is" occurring in both sections 107 and 108 have reference only to question of the burden of proof at the trial and not at any antecedent point of time. Thus, if a person has not been heard of for sever, years there is a presumption of law that he is dead but this presumption does not extend to the date of death. Indeed there is no presumption that he died at the end of the first seven years, or at any particular date. This fact has necessarily to be proved as a fact because section 108 does not direct the Court to presume that ,the person who has not been heard of for the last seven years had, in fact, died at the expiry of seven years. It only provides that such a person is presumed, to be dead without fixing the time of death. It is for this reason' that where it is necessary to establish that a person died at any particular time such a fact must be proved by positive evidence. Thus, notwithstanding the presumption of death it would be possible for the Court to give a finding that it occurred after the expiry of, the period of seven years since the time when he was last heard of if the evidence so warrants. The upshot is that section 108 of the Evidence Act merely; creates a presumption that the person, who has not been heard of for seven years, is dead, at the date of the suit, and does not refer in any way as to the date of his death, which has to be proved in the same way as any other relevant fact in the case." As there is, in the case before us, no evidence whatsoever to fix either exactly or approximately the date of death of Sher Khan, the appellants cannot succeed in establishing that Lal Khan had pre deceased him notwithstanding the fact that the death of Sher Khan has to be presumed. There is no merit in this appeal and the same is dismissed with no order as to costs. M.B.A./S.173/S. Appeal dismissed.