JUDGMENT

I.B. Singh, Member. - This is a defendant's second appeal against the judgment and decree dated August 3, 1973 dismissing appeal No. 311 of 1970-71/district Aligarh confirming judgment by Assistant Collector Ist Class, district Aligarh decreeing plaintiff's suit for division of half share in the disputed land.

2. The plaintiff filed the suit for declaration and division of half share in the dispute land being sister's son of Tej Singh and alleging the share of defendant No. 1 to be half alleging that Gunga was unheard of since 35 to 36 years and after his death Tej Singh and Ganga inherited in equal shares; that Tej Singh died on 1960.

3. The suit was contested by defendant alleging the share of the plaintiff to be only 1/3, that Goonga's share was inherited by Jeewa Ram his brother who was alive after Puran and after the civil death of Goonga and inherited the share of Goonga and his share is, therefore, is ?rd.

4. I have heard the learned counsel for the parties and have perused the record.

5. It has been argued that Gunga's civil death will be presumed 7 years prior to 1960 who was recorded as farmer since 1367 Fasli per application of the parties who knew that he was Farar since several decades and Ganga Prasad and Jeewa Ram inherited his share because Pooran Mal had died in 1935, 1936 as his son Tej Singh was recorded in 1344 Fasli then Jeewa father of the defendant was alive who was recorded in 1347 Fasli and brother's son is preferentially heir to sister's son even if the death is presumed 7 years ago Goonga being recorded Farar since 1367 Fasli. Reliance has been placed on 1979 A.W.C. 454.

6. It has been argued in reply that presumption of death of Goonga will arise after 7 years of being unheard of and both the courts below concurrently held that Goonga's share was inherited by both. Ganga and Tej Singh being brother's son, equally, which is the finding of fact which should not be interfered with.

7. The following pedigree is not disputed:-

8. It is admitted case of the parties that plaintiff is sister's son to Tej Singh and that Kundan and Ram Lal had died before Goonga became absconder.

9. The share of Goonga is in dispute as to whether it was inherited by Jeewa Ram and then by Ganga Prasad or was inherited by Ganga Prasad and Tej Singh if it was inherited by Jeewa Ram and then by Ganga Prasad the share of the defendant will be ?rd and of the plaintiff will be ?rd and if it was inherited by both Ganga Prasad and Tej Singh then the share of the parties will be half and half.

10. Sections 107 and 108 of Indian Evidence Act run as follows:-

11. These two sections do not lay down as to when a person is presumed to be dead or alive. They only lay down rule of evidence regarding burden of proving the factum of proving the person to be dead or alive i.e. when a person was alive within 30 years the burden of proving that he is dead is on person who affirms it and when it is proved that a person has not been heard for 7 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. Thus these two Sections do not lay down as to on what specific date or time the presumption of death arises. They only lay down when the burden of proving death or of being alive arises and on whom such burden lies.

12. It has been