A party cannot be impleaded as a party/defendant to a suit if they have already instituted a separate suit for the establishment of their rights.

( 1 ) THIS is an application in revision against the order dated 19-1-1998 passed by Sri R. H. Zaidi, Civil Judge (Senior Division) Meerut whereby impleadment applicability moved by the revisionists in Original Suit No. 942 of 1986 have been rejected. Heard Sri A. D. Prabhakar and Sri Promod Jain, learned counsel for the parties.

( 2 ) ORIGINAL Suit No. 942 of 1986 was instituted by Hemant Kishore and two others for the relief of partition of the properties as have been described in Schedule a of the plaint and for possession over half of their share; for permanent injunction restraining the defendants from alienating or transferring half share of the plaintiffs in the suit property and for rendition of accounts. Brij Raj Kishore and his son Vijay Kumar are defendant Nos. 1 and 2 in the suit. The suit has reached almost at the stage of its conclusion as arguments have been heard after recording the evidence of the parties and the case was reserved for judgment. It was at this stage that the present applicants, who are the wife, son and daughter of defendant Vijay Kumar moved applications for their impleadment under Order 1, Rule 10 (2) read with Section 151 of the Code of Civil Procedure. It was alleged that the defendant No. 2-Vijay Kumar has not been heard of for the last more than 7 years and consequently, a legal presumption under Section 108 of the Evidence Act arises that he is dead. It is also alleged that the applicants being legal heirs of Vijay Kumar, are entitled to be substituted and in any case, they have their own independent rights in the disputed properties which undoubtedly are the ancestral properties, and, therefore, their impleadment in the suit as defendants is necessary with a view to decide it effectively.

( 3 ) SRI Brij Raj Kishore, defendant No. 1, who happens to be the grandfather/father-in-law of the applicants has opposed the impleadment of the applicants by filing a separate objection. He has asserted that Vijay Kumar was last seen alive five years ago, meaning thereby the presumption under Section 108 of the Evidence Act cannot be raised about his death and that the application for substitution is highly belated and barred by time, inasmuch as, the applicants have instituted a separate suit No. 7 of 1997 on 2-1-1997 for establishment of their rights in that ancestral property and they should have, in any case, moved an application for substitution under Order XXII, CPC within 90 days of their having come to know of the death of Vijay Kumar. It was also stated that Vijay Kumar had earlier filed a written statement in which he had categorically asserted that he has no share in the disputed properties, which are sought to be partitioned, had no concern, whatsoever with that and that he has unnecessarily been impleaded as party to the suit and in view of these assertions/ admission of Vijay Kumar, the applicants cannot make a case contrary to what Vijay Kumar had asserted.

( 4 ) AT the outset, it may be pointed out that Vijay Kumar admittedly has not met with his physical death. A presumption of his death is sought to be raised in the light of the provision of Section 108 of Evidence Act, which provides as follows :-"108. Burden of proving that person is alive who has not been heard of for seven years - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. "section 107 of the Evidence Act deals with the presumption of the continuance of life while Section 108 raises a presumption of death if the person has not been heard of for seven years. The effect of these two provisions in the Evidence Act is that the presumption of life prevails until displaced by the proofof actual death of proof of facts raising the presumption of death and, in the latter case presumption of