Under Section 108 of the Indian Evidence Act, a person not heard of for seven years can be presumed dead, and all parties must be present in proceedings for a valid decree.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. 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.