The main legal point established in the judgment is the application of the presumption of death under Section 108 of the Indian Evidence Act, 1872, and the shift of burden of proof to establish that a person is alive after not being heard of for seven years.

JUDGMENT

Prathiba M. Singh, J. - This hearing has been done through hybrid mode.

2. These are two revision petitions arising out of a suit being Suit No. 298/2008 titled Pushpa Rani & Ors. v. Union of India & Ors., before the Ld. Civil Judge, Tis Hazari West, Delhi, (hereinafter 'Trial Court') which was filed by one Smt. Pusha Rani/Plaintiff No.1 - claiming to be the wife of Late Shri Khirod Sikhdar - and her four children namely Babu Lal Sikdar, Dhrity Sikhdar, anita Sikhdar and Mamta Rani. The suit was filed against the Defendants therein being, the Union of India, through Secretary (Home), Commissioner of Police and SHO, PS, Model Town, for declaration and consequential reliefs.

3. The case of the Plaintiffs/Respondent Nos.1-4 (hereinafter 'Plaintiffs') was that they are family members of Shri Khirod Sikhdar, who has been missing for more than 7 years. Thus, a decree of declaration was sought before the Trial Court, in the following terms:

'Under these circumstances, it is therefore respectfully prayed that a decree of declaration be passed in favour of the plaintiffs there by declaring that Khirod Sikdar is dead and is no more, in the interest of justice.

any other relief which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case be also passed in favour of the plaintiffs. Cost of the suit be also awarded.'

4. In the said suit, a judgment/decree of declaration was granted on 23rd august, 2011. The said judgment has been passed on the basis that approximately fourteen years ago, the Plaintiff's husband had gone to his native village in Bareilly, UP, but did not return. Consequently, the Trial Court noted that a complaint was also filed in this regard to the SHO, PS Model Town, by Plaintiff/stated to be the wife of Shri Khirod Sirkar, and public notice was issued, since the Plaintiff's husband had disappeared for a very long time and there were no other legal heirs. The issues were framed in the matter and on the basis of the fact that more than seven years had passed and he had not been heard of, by his relatives and family members, the ingredients under Section 108 of the Indian Evidence act, 1872, were held to have been made out. The findings of the Trial Court vide judgement/decree dated 23rd august, 2011, are as under:

'Issue no.1:- Whether the plaintiff is entitled for a decree of Declaration, as prayed for? OPP

The onus to prove this issue was upon the Plaintiff.

Vide her testimony Ex.PW1/a, it is proved by the plaintiffs that plaintiff no.1 was married with Sh. Khirod Sikdar and out of the said wedlock, four children has been born as plaintiff no.2 to 5. The plaintiff no.1 was a nurse and working in Jaipur Medical Hospital & others. That Sh. Khirod Sikdar was a permanent resident of village Utarsia Samukhia, Pargana Richa, Tehsil Baheri, Distt. Bareily, U.P. and was a doctor by profession. approximately fourteen years ago he went to his native village but he did not return. The plaintiff no.1 went to the native village at Barely, U.P. but couldn't succeed to know the whereabouts of her husband. She also contacted the village Pradhan but all in vain and till date no whereabout of her husband could found. This constrained the plaintiff to file a complaint to the SHO PS Model Town and another complaint to SHO PS Baheri, UP had been lodged in this regard. a public notice was also got published in the newspaper 'Veer arjun' dated 13.03.2008 as well as another public notice published in the newspaper 'Rashtriya Sahara' published from Lucknow dated 28.03.2008. That it has been very long time the husband of plaintiff no.1 had dis-appeared and his whereabouts are not known to the plaintiffs. That there are no other legal heirs of Sh. Khirod Sikdar except the plaintiffs.

By way of present suit, plaintiff no.1 has sought the relief of declaration thereby declaring the husband of plaintiff Sh. Khirod Sikdar as dead. It is argued by counsel for plaintiff that if a person is not heard of for 7 years by