J U D G M E N T

The suit for partition was dismissed concurrently by the courts. The plaintiffs are in appeal.

2. The plaint schedule consists of three items. The properties belonged to Kannan, the uncle of the plaintiffs (mother's brother); plaint item Nos.1 and 2 as per Ext.A2 partition karar of the year 1968, and item No.3 as per Ext.A1 assignment deed of the year 1968. Kannan is unheard of since the year 1975 and is presumed to be dead. He was unmarried and issueless. It is on the said allegations that the suit was filed for partition.

3. The second defendant filed written statement contending that Kannan had executed a power of attorney in his favour to deal with the property. He was put in possession of the property. There was an understanding that the property would be conveyed to him. The plaintiffs' contention that Kannan is presumed to be dead, was denied.

4. When the case was listed for trial in the list, the second defendant remained ex parte. Defendants 1 and 2 had filed written statements supporting the plaintiffs' case.

5. The courts refused to draw the presumption of death under Section 108 of the Evidence Act. The Courts were not satisfied with the evidence on record,