IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 8 OF DECEMBER, 2025 SECOND APPEAL No. 1243 of 2011 SMT. IMARTI BAI Versus SMT. MAYA BAI AND OTHERS Appearance:

Shri Gyanendra Singh Baghel with Miss Krishna Singh Chandel - Advocates for the Petitioner.

ORDER The present Second Appeal has been admitted on 27.08.2014 for the following substantial question of law:-

"whether both the Courts below were justified on the basis of evidence to hold that the plaintiff has failed to establish the case under Section 108 of the Evidence Act".

2. The Appellants have filed this appeal being aggrieved by the Judgment and Decree dated 24.10.2011 passed in M.C.A.No.16/2011 by First Additional District Judge, Narsinghpur whereby the Appeal of the Appellant has been rejected and Judgment and Decree passed by the Trial Court dated 28.07.2011 whereby the suit of the Appellant had been rejected, has been confirmed.

3. The Appellant had filed a suit for declaration of civil death of her husband named Ganesh Prasad Rakeshiya on the assertion that the said person was mentally unstable and is missing since the year 1998. Two daughters were born out of their wedlock with the missing person Ganesh Prasad and out of the two daughters, one is residing alongwith the Plaintiff. There was a joint fixed deposit Receipt in the name of Plaintiff and her husband named Ganesh Prasad which was said to get matured on 30.12.2002 but her missing husband named Ganesh Prasad who was undergoing treatment for mental illness suddenly got missing from his house in January, 1998.

4. It was further asserted that despite he having been searched at all possible places wherever he could be anticipated to have gone, and after enquiring from all persons who could have known his whereabouts, still no whereabouts of Ganesh Prasad could be obtained. Therefore, to get the amount deposited in the name of Ganesh Prasad and for other purposes, declaration of Civil death of Ganesh Prasad in terms of Section 108 of Indian Evidence Act was sought in the suit which was filed on 10.05.2011.

5. The Defendant No.1 Maya entered the witness box and admitted the Plaint averments. Nothing was brought on record that Ganesh Prasad has been heard by any of such persons within last 7 years by those who would be naturally expected to hear about the whereabouts of Ganesh Prasad.

6. The Trial Court dismissed the suit on the ground that no document has been placed on record to show that Ganesh Prasad is missing since last more than 7 years. Since no missing person report or document was filed therefore, the Trial Court did not find it fit to grant Decree of Civil Death of Ganesh Prasad. In Appeal, the Appellate Court held that since no date, time and place of death could be placed on record by way of evidence by the Plaintiff, therefore, no declaration can be granted.

7. So far as the reasoning and justification adopted by the Appellate Court is concerned, since declaration was sought of presumption of Civil Death, therefore, for the purposes of Section 108 of Indian Evidence Act, what was relevant is missing of a person for the last more than 7 years and no date, time and place of death is relevant in such cases.

8. The Plaintiff has duly appeared before the Trial Court and submitted that Ganesh Prasad has not been heard for last more than 7 years and no evidence was adduced before the Trial Court to indicate that Ganesh Prasad has been heard by any person within last 7 years. The Trial Court has only disbelieved the assertion of the Plaintiff on the ground that no report of missing person has been lodged in the concerned Police Station by the Plaintiff.

9. Though, by way of I.A.No.14698/2011 and I.A.No.15460/2011, additional evidence in terms of Order 41 Rule 27 has been brought by the Appellant to show that missing person report was filed on 19.02.2003 and the suit was instituted more than seven years after that date. However, it is seen that irrespective of the said ap