JUDGEMENT

1. The appellants have preferred the present second appeal under section 100 of Code of Civil Procedure, 1908 (in short CPC) against the impugned judgment and decree dated 25.7.2023 passed by Fifth District Judge Mandsaur in civil appeal no. RCA/123/2023 thereby affirming the judgment and decree dated 7.12.2020 passed by Third Civil Judge Class II District Mandsaur in RCS-A/119/2020 whereby the civil suit filed by appellants for declaration of civil death has been partly allowed.

2 Brief facts of the case are that the appellants/plaintiffs are the parents of Surendra Singh Solanki, who had joined Indian Army in the year 2002 as Soldier and in the year 2010 he was promoted to the post of Signal Man in Srinagar. Surendra Singh took his training from 4.2.2010 to 21.2.2010 at Military Technical Training Institute Goa and was again called by the Center for further military training on 25.7.2010 in Goa. Surendra Singh went for training in Goa, but never returned from there and on 27.7.2010 the Military Training Center Goa informed the appellants that Surendra Singh has not reached at the training center on 25.7.2010. Thereafter appellants have lodged a missing person report at police station Ponda Goa. The appellants started receiving ordinary family pension w.e.f. 25.7.2010 and in the year 2020 they received a communication from department that due to non availability of death certificate of Surendra Singh, Special Family Pension GPR and other arrears could not be paid to them. Thereafter appellants have filed the civil suit for declaration of date of civil death of Surendra Singh.

The respondents/defendants No. 3 and 4 filed their written statement before the trial court has supported the appellants claim except the factum of civil death of Surendra Singh since 25.7.2010. The learned trial court on the basis of aforesaid pleading framed issues and after hearing both the parties and recording evidence has decreed the suit filed by plaintiffs/appellants by declaring civil death of Surendra Singh since 24.6.2020 i.e. the date of institution of civil suit. Being aggrieved by the impugned judgment and decree, the appellants have preferred first appeal, but after re-appreciating the entire evidence, the first appellate court has affirmed the findings of fact, so recorded by the trial court and dismissed the appeal. Hence the appellants have preferred this second appeal.

5 Learned counsel for appellants contended that both the courts below have committed grave error of law in misinterpreting the fact regarding determining the date of death of Surendra Singh as 24.6.2020. The Department of defence has already considered the date of death of Surendra Singh as 25.7.2010 and also granted ordinary family pension to appellants. The same person cannot have two dates of death. Army Court of Inquiry has considered the date of his disappearance since 25.7.2010. Hence it is prayed that appeal be allowed and date of civil death of Surendra Singh be considered as 25.7.2010. Learned counsel for respondent no.2 opposes the prayer, by submitting that the impugned judgments and decree passed by both the courts below are just and proper and does not deserve for any interference.

Heard learned counsel for the parties and perused the record of both the courts below with due care.

This second appeal was admitted for final hearing vide order dated 2.5.2024 on following substantial questions of law:- "(i) Whether, the Courts below considering the cause of action i.e. the issuance of letter from respondent No.2 still failed to grant the declaration from the date of deceased son of appellant went missing i.e. 25.07.2010? (ii) Whether, the Court below committed mistake of fact and law in considering the date of civil death of Surendrasingh Solanki from the date of institution of the suit instead of date he went missing? (iii) Whether, date of death cannot be presumed and does Section 108