In absence of relevant evidence, no presumption can be drawn under sec.108 of the Evidence Act for a missing person.

VIRENDRA KUMAR MATHUR, J.

1. 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.

2. 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.

3. 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

4. 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.

5. In the context of arguments raised by the appellants, perused the evidence and documents placed on record.

6. 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.

7. 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.

8. 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.