Bahadur Singh vs Bunty Singh @ Nihal Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(MP) 24

IN THE HIGH COURT OF MADHYA PRADESH
G. S. Ahluwalia, J.
Bahadur Singh v. Bunty Singh @ Nihal Singh & Others
Second Appeal No. 737 of 2022 (Gwalior): against the judgment and decree dated 24.1.2022 passed by the Additional Judge to the Court of 1st Additional District Judge, Gohad, District Bhind in RCA No. 24 of 2017 and judgment and decree dated 24.3.2017 passed by the 3rd Civil Judge Class II, Gohad, District Bhind in Civil Suit No. 94A of 2015; Decided on 22.1.2025

Advocates appeared:
N. K. Gupta assisted by Ms. Rashi Kushwah for appellant.

Headnote:
(1) Evidence Act, 1872 -- S. 108 -- declaration of civil death -- submission that it is not necessary to prove exact date on which person went missing, the particular year in which person went missing would be the starting point for calculating period of seven years -- held -- year in which a person went missing is not sufficient to calculate period of seven years -- if person leaves his house on 1st of January of a year or if he leaves on 31st December of same year, then it will be projected that the person was seen for the last time in that particular year and he went missing thereafter but there will be a gap of one year -- however, if it is proved that person went missing in a particular month of a particular year, then exact date may not be relevant. [Para 7
(2) Evidence Act, 1872 -- S. 108 -- date or time of death -- shall have to be determined on evidence, direct or circumstantial, and not by assumption or presumption -- burden of proof would lie on person who makes assertion of death having taken place at a given date or time. (2004) 10 SCC 131 followed. [Para 7
(3) Civil P. C., 1908 -- S. 100 -- scope of power -- Court cannot interfere with findings of fact until and unless they are shown to be perverse -- even erroneous finding of fact cannot be interfered with. 2010(3) JLJ 1 = (2010) 12 SCC 740 followed. [Para 9
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 108 && flfoy e`R;q dh ?kks"k.kk && fuosnu fd og lVhd fnukad lkfcr djuk vko';d ugha ftl fnukad dks O;fä ykirk gqvk] lkr o"kZ dh vof/k laxf.kr djus ds fy, vkjaHk fcanq og fof'k"V o"kZ gksxk ftlesa O;fä ykirk gqvk && vfHkfu/kkZfjr && lkr o"kZ dh vof/k laxf.kr djus ds fy, og o"kZ i;kZIr ugha ftlesa O;fä ykirk gqvk && ;fn dksbZ O;fä fdlh o"kZ dh 1 tuojh dks ;k fQj mlh o"kZ ds 31 fnlacj dks viuk ?kj NksM+rk gS rks ;g O;ä fd;k tk,xk fd og O;fä ml fof'k"V o"kZ esa vafre ckj ns[kk x;k Fkk vkSj rRi'pkr~ og ykirk gks x;k] ijarq mlesa ,d o"kZ dk varj gksxk && rFkkfi] ;fn ;g lkfcr fd;k tkrk gS fd O;fä fdlh fof'k"V o"kZ ds veqd ekl esa ykirk gqvk] rks lVhd fnukad lqlaxr ugha gksxkA ¼iSjk 7
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 108 && e`R;q dk fnukad ;k le; && çR;{k ;k ikfjfLFkfrd lk{; ij vo/kkfjr fd;k tkuk gksxk] /kkj.kk ;k mi/kkj.kk ls ugha && lcwr dk Hkkj ml O;fä ij gksxk tks fdlh fuf'pr fnukad ;k le; dks e`R;q gksus dk çk[;ku djrk gSA ¼2004½ 10 ,llhlh 131 vuqlfjrA ¼iSjk 7
¼3½ flfoy çfØ;k lafgrk] 1908 && /kkjk 100 && 'kfä dh O;kfIr && U;k;ky; rF; ds fu"d"kksaZ esa rc rd gLr{ksi ugha dj ldrk tc rd fd mUgsa foi;ZLr ugha n'kkZ;k tk, && ;gk¡ rd fd rF; ds xyr fu"d"kZ rd esa gLr{ksi ugha fd;k tk ldrkA 2010 ¼3½ tss,yts 1 ¾ ¼2010½ 12 ,llhlh 740 vuqlfjrA ¼iSjk 9

JUDGMENT

1. This Second Appeal, under section 100 of CPC, has been filed against the judgment and decree dated 24.1.2022 passed by Additional Judge to the Court of First Additional District Judge, Gohad, District Bhind (M.P.) in RCA No.24/2017 as well as judgment and decree dated 24.3.2017 (wrongly mentioned in the judgment as 24.3.2016) passed by III Civil Judge Class II, Gohad, District Bhind (M.P.) in Civil Suit No.94A/2015 by which the suit filed by appellant for declaration that respondent No.1 Banti Singh @ Nihal Singh has died a civil death has been dismissed.

2. Facts necessary for disposal of present appeal, in short, are that appellant preferred a civil suit claiming that cousin brother of plaintiff was Rambharosi Kaurav. Banti @ Nihal Singh was the solitary legal representative of Rambharosi Kaurav. Cousin brother of appellant, namely, Rambharosi expired in the year 1986. Wife of defendant No.1 died during the lifetime of defendant No.1. Defendant No.1 was issueless and he was solitary legal representative of his father. Defendant No.1 was of loose character and he was in the habit of consuming liquor and gambling. Defendant No.1 has approximately 25 Bighas of land in village Kanchanpur, Pargana Gohad. On 10.1.2002, defendant No.1 executed an agreement to sell after receiving complete consideration amount and possession of land was also given to plaintiff. It was pleaded that since thereafter appellant is in possession of the land in dispute. It was further pleaded that on 1.1.2005 defendant No.1 left the village and now his whereabouts are not known and accordingly it has to be presumed that defendant No.1 has died a civil death. It was claimed that plaintiff is also legal representative of defendant No.1. When plaintiff went to get his name mutated in the revenue records then it was suggested to him to obtain decree of declaration that defendant No.1 has died a civil death. Accordingly, suit was filed.

3. The trial Court after recording evidence dismissed the suit by holding that appellant has failed to prove that defendant No.1- Banti @ Nihal Singh has died a civil death. Being aggrieved by the said judgment and decree passed by trial Court appellant preferred an appeal which too has been dismissed by judgment and decree dated 24.1.2022 passed by Additional Judge to the Court of First Additional District Judge, Gohad, District Bhind (M.P.).

4. Challenging the judgment and decree passed by the Courts below, it is submitted by counsel for appellant that in order to prove civil death of a person, it is not necessary to prove the actual date on which the person went missing. It is further submitted that although appellant had claimed that agreement to sell was executed by defendant No.1 after receiving entire consideration amount and possession was also delivered to him but he submits that he will not press the aforesaid fact and would confine his claim only on the basis of civil death of defendant No.1. Appellant has proposed the following substantial questions of law:

I. Whether the impugned judgments & decrees can be considered as lawful even when both the learned Courts below failed to gone through the oral and documentary evidence available on record?

II. Whether the statements on oath of the plaintiffs can be disbelieved without any reason?

III. Any other substantial question of law which this Hon’ble Court may deems fit may kindly be framed?

5. Heard learned counsel for appellant.

6. By relying upon the judgment of Supreme Court in the case of LIC of India v. Anuradha reported in (2004) 10 SCC 131, it is submitted by counsel for appellant that it is not necessary for the appellant to prove the exact date on which the deceased went missing. If it is claimed that the deceased went missing in a particular year, then it would be the starting point for calculating the period of seven years as mentioned in section 108 of Evidence Act.

7. This Court is unable to convince itself that even the year in which a person