Minor Lokeshwari Vs General in Public (If Any Objection)

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Digitally signed by AVANISH KUMAR PATHAK Date: 2025.02.17 10:54:41 +0530

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2025:CGHC:7596

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 18 of 2024

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1 - Minor Lokeshwari D/o Ishwar Patel Aged About 12 Years Through Legal Heirs Mother Kaushilya Bai W/o Ishwar Patel, Aged About 29 Years. R/o Village Jara, Tahsil And Police Station Palari, District - Baloda BazarBhatapara, Chahttisgarh. (Plaintiffs)

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2 - Kaushilya W/o Ishwar Patel Aged About 29 Years R/o Village Jara, Tahsil And Police Station Palari, District - Baloda Bazar-Bhatapara, Chahttisgarh.

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3 - Kanti D/o Chhabi Ram Patel Aged About 30 Years R/o Village Jara, Tahsil And Police Station Palari, District - Baloda Bazar-Bhatapara, Chahttisgarh.

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4 - Kunti D/o Chhabi Ram Patel Aged About 28 Years R/o Village Jara, Tahsil And Police Station Palari, District - Baloda Bazar-Bhatapara, Chahttisgarh.

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5 - Kamla W/o Chhabiram Patel Aged About 57 Years R/o Village Jara, Tahsil And Police Station Palari, District - Baloda Bazar-Bhatapara, Chahttisgarh.

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... Appellants

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versus

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1 - General In Public (If Any Objection) Nil. (Defendants)

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2 - State Of Chhattisgarh Through The Collector Baloda Bazar, District - Baloda Bazar - Bhatapara, Chhattisgarh.

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... Respondents

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For appellants : Mr. C.P. Sahu, Adv. For respondent No. 2 : Ms. Mandavi Bhardwaj, PL For respondents No. 1 : None.

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(HON’BLE Shri Naresh Kumar Chandravanshi)

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Order on Board

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12/02/2025

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Heard on admission.

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This appeal has been preferred against the judgment and decree dated 8-12-2023 (Annexure A-1) passed by the learned District Judge, Balodabajar, Distt. Balodabajar (C.G.) in Civil Appeal No. A/16/2023, whereby learned District Judge upheld the judgment and decree dated 1-8-2023 passed by learned Civil Judge Class II, Balodabajar in Civil Suit No. 25-A/2022, whereby learned Civil Judge has dismissed the civil suit filed by the appellants/plaintiffs for declaration of civil death of Chhabiram Patel and declaration of their title over the disputed land.

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(For the sake of convenience, parties would be referred to as per their status shown and ranking given in the suit before the trial Court.)

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Facts of the case in nutshell are that appellants / plaintiffs filed civil suit against respondents that Chhabiram Patel, who is grand father of plaintiff No. 1, father-in-law of plaintiff No. 2, father of plaintiffs No. 3 and 4 and husband of plaintiff No. 5 is missing since last 22 years. Despite search made by them, he could not be traced out and they are unaware whether he is alive or dead. It has been further pleaded that Chhabiram Patel was owner of land bearing Khasra No. 53/3, 53/6, 755/5, 896, 897/1, 905/1, 905/3, 993/1, total khasra no. 8 and total area 0.840 hectare situated at village Jara, Patwari Halka No. 07, RNM – Sandi, Tahsil Palari, Distt. Balodabajar-Bhatapara (CG) (henceforth, referred to as ‘disputed land’), which is still recorded in the name of Chhabiram Patel in revenue record, therefore, plaintiffs are facing various difficulties, as such, they filed civil suit seeking relief as has been stated in preceding paragraph against public at large and the State government.

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Respondents/defendants remained exparte.

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Leaned trial Court framed 4 issues for determination and after recording evidence, dismissed the civil suit filed by the plaintiffs, which has been upheld by the 1^st appellate Court i.e. District Judge, Balodabajar. Hence, this appeal.

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Learned counsel for the appellants/plaintiffs would submit that, plaintiffs are wife, sons, daughter-in-law and grand children of Chhabiram Patel, who is missing since 22 years, and despite the search made by them, plaintiffs are not known about his whereabouts. This fact has been proved by plaintiffs and their witnesses, who are Kotwar and Sarpanch of village Jara, but the learned trial Court has not considered their deposition in true perspective and the judgments rendered by learned trial Court as well as 1^st appellate Court are perverse and illegal, therefore, appeal may be admitted for hearing.

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On the other hand, learned State counsel would submit that the impugned judgment passed by the trial Court as well as 1^st appellate Court are just and proper, which do not call for any interference.

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I have heard learned counsel for the parties, perused the material available on record along with the record of the Court below.

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Section 108 of the Evidence Act provides for burden of proving that person is alive, which is as under :-

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“ 108. Burden of proving that person is alive who has not been heard of for seven years .—[Provided

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that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven 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.”

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Hon’ble Supreme Court in the matter of LIC of India Vs. Anuradha [(2004) 10 SCC 131] has dealt with Section 108 of the Evidence Act and has held as under :-

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“12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of

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evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.

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14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words: the law as to presumption of death remains the same whether in the common law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving

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that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise.”

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Having considered the provisions of Section 108 of the Evidence Act and in the light of decision of Hon’ble Supreme Court in Anuradha’s case (supra), the appellants/plaintiffs ought to have specifically pleaded that since when, Chhabiram Patel is missing and this fact was

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disclosed by them to public at large immediately after missing of Chhabiram Patel. When specific question was posed to the counsel for the appellant in this regard, then he submitted that plaintiffs are aware about this fact since last 22 years when Chhabiram Patel was missing, but neither any report was made to the police nor any other public notice in any mode has been made. The facts projected by the plaintiffs clearly demonstrate that, they first time made diclosure about missing of Chhabiram Patel in the year 2022 by filing instant civil suit. Prior to that, they had never disclosed aforesaid fact. Prior to that, they have never disclosed aforesaid fact, whereas presumption under Section 108 of the Evidence Act would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise, as has been held by Hon’ble Supreme Court in above cited case.

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In view of above discussion, I do not find any perversity or illegality in the impugned judgment and decree passed by the trial Court dismissing the civil suit preferred by the appellants/plaintiffs and upheld by the First Appellate Court and no substantial question of law is found to be framed, hence, this appeal is dismissed at motion stage.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Pathak

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Minor Lokeshwari v. General in Public (If Any Objection)

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Minor Lokeshwari v. General in Public (If Any Objection)

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