Dattatraya Ganapati Hegde Vs the State of Karnataka

THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.04.2024 IN R.A.NO.01/2021 PASSED ON THE FILE OF SR. CIVIL JUDGE AND PR. JMFC, COURT, SIRSI, AT SIRSI, UTTAR KANANDA BY ALLOWING THE INSTANT APPEAL AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is filed by the plaintiffs, aggrieved by the judgment and order dated 01.04.2024, passed in R.A. No.1 of 2021 on the file of the Senior Civil Judge and Prl. JMFC Court, Sirsi, Uttara Kannada (for short the first appellate court), whereby the first appellate court while allowing the appeal filed by the respondent-State, set aside the judgment and decree dated 27.07.2020, passed in O.S. No.156 of 2015 on the file of the I Additional Civil Judge and II Additional JMFC, Sirsi, and consequently dismissed the suit of the plaintiff seeking declaration of civil death of Subraya Ganapati Hegde.

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The above suit in O.S. No.156/2015 is filed by the plaintiffs seeking declaration that one Subraya Ganapati Hegde, the brother of plaintiff No.1, 2, 3, 7 and brother-in-law of plaintiff No.4 and uncle of plaintiff Nos.5, 6 and 8 has died on 11.06.1958 and his death should be declared as civil death, consequently, for a direction to defendant No.2 to enter the date of death of said Subraya Ganapati Hegde in the register of deaths and to issue a death certificate thereof contending inter alia that the said Subraya Ganapathy Hegde was unmarried

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and had left home on 11.06.1958 without informing anyone,

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and his whereabouts were not known to any family members ever since. As there had been no communication for over 57 years, the family presumed that he had passed away. The family owns and possesses several items of landed properties described in the plaint consisting of 22 items. In order to make changes in revenue records concerning the said properties, a death certificate of Subraya Ganapati Hegde was required. Upon enquiry, the respondents/authorities informed that unless and until a decree declaring civil death of Subraya Ganapati Hegde was obtained from a competent court of law, the request for change in the revenue entry could not be considered. Accordingly, the plaintiffs issued notice dated 07.03.2015 to the respondent authorities. Since, there was no response, the plaintiffs filed the suit.

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Before the trial court, plaintiff No.1 examined himself as PW.1 and another witness as PW.2 and marked 35 documents were marked as Ex. P1 to P.35. No oral or documentary evidence was led by the defendants. The trial court, framed the following points for its consideration:

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“1. Whether the plaintiffs prove that the brother of the 1^st plaintiff by name Subray Ganapati Hegde has not been heard from last 57 years?

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2. Whether plaintiffs are entitled for the relief of declaration and mandatory injunction as prayed for?

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3. What order or decree?”

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The Trial Court on appreciation of evidence, answered issue Nos.1 and 2 in the affirmative and decreed the suit, declaring that Subraya Ganapati Hegde had died on 11.6.1958 and directed defendant No.2 to register the deaths and issue the certificate after collecting prescribed fees.

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The respondents/authorities preferred R.A No.1/2021 before the Senior Civil Judge and Prl. JMFC Court, Sirsi. The first appellate court framed following points for consideration:

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“1. Whether the appellants/defendants made out sufficient grounds to interfere with the judgment of Trial Court?

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2. Whether the appellants further prove that the Trial Court committed wrong while considering the evidence?

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3. What order or decree?

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On re-appreciation of the evidence on record, answered

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Point Nos.1 and 2 in the affirmative, allowed the appeal and dismissed the suit.

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The first appellate court primarily held that Subraya Ganapati Hegde went missing as far back as 1958 and that the plaintiffs, being his relatives had neither taken any steps to trace him, nor had they lodged any police complaint. In the absence of any acceptable material, the first appellate court refused to grant the relief of declaration of civil death. Hence, the present appeal.

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This Court by order dated 02.07.2024 framed the following substantial questions of law:

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“i. Whether the finding of the First Appellate Court is erroneous having been rendered by ignoring the presumption contained in Section 108 of the Evidence Act, 1872.

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ii. Whether the judgment of the First Appellate Court interfering with the judgment of the Trial Court is just and proper?”

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This Court, after hearing both learned counsel for the appellants/plaintiffs and the Learned HCGP appearing for the respondent/State, on 25.06.2025 passed the following order:

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“Appellants herein filed a suit in OS No.156/2015 seeking declaration that one Subraya Ganapati Hegde second son of Ganapati Hegde and brother of the plaintiff No.1 as having died on 11.06.1958 in terms of Sections 107 and 108 of the Indian Evidence Act. The said suit came to be decreed as sought for with a direction to defendant No.2 Tahsildar to register/enter

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the date of death of said Subraya Ganapati Hegde as 11.06.1958 in the Register of Births and Deaths maintained by him.

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2. As against the said judgement and decree dated 27.07.2020 respondent-State Government and the Tahasildar, Sirsi, preferred an appeal in RA No.1/2021. The First Appellate Court by the impugned order allowed the said appeal and set aside the judgment and decree passed by the trial Court. Aggrieved by the same, the plaintiffs are before this Court.

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3. Learned counsel for the appellants referring to the provisions of Sections 107 and 108 of Evidence Act and relying upon judgements of the Apex Court in the case of LIC of India Vs. Anuradha reported in (2004) 10 SCC 131 and the judgment of Madras High Court in the case of Huseinny J. Bhagat and another Vs. Life Insurance Corporation of India, Madras, reported in AIR 1965 Mad 440 submits that if a person is unheard for over 7 years by the persons who would naturally have heard of him if he is alive, are entitled to seek declaration regarding presumption of his civil death. He submits that the respondent-State cannot have any grievance as the appellants are not seeking any benefit or interest against the State.

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4. Per Contra, the learned Government Advocate bringing to the notice of this Court to the reasoning assigned by the First Appellate Court at paragraph 12 of the judgement submitted that the plaintiffs themselves have produced document at Ex.P29 which is a mutation register entry of the year 2015, in which for the first time, name of said Subraya Ganapati Hegde has been mutated. He further submits that the witness PW1 in the cross-examination has admitted that the said Subraya was alive as on the year 2015. Referring to these two pieces of evidence, the learned Government Advocate submits that since contrary stand were taken by the plaintiffs, the First Appellate Court allowed the appeal, setting aside the judgement and decree passed by the trial Court.

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5. In response, the learned counsel for the appellants submits that things have taken shape in the

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natural course out of ignorance of the plaintiffs which cannot be held against them without there being any justifiable cause.

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6. Heard.

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7. In the normal course, this appeal would have been adjudicated based upon the substantial question of law that may arise for consideration. However, considering the peculiar fact situation of the matter before proceeding further, this Court deems it appropriate to obtain a report from the respondents regarding the claim of the plaintiffs in the matter. Accordingly, the following:

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ORDER

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i. The Deputy Commissioner, Uttara Kannada, Karwar who is the first respondent in this matter is directed to cause an enquiry to be done through the Tahsildar, Sirsi District, Uttata Kannada who is the respondent No.2 in this matter, with regard to whether Subraya Ganapati Hegde son of Ganapati Hegde went missing and has not been heard as contended by the plaintiffs/appellants in the plaint and file a report in this regard on or before 15.07.2025.

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ii. Learned Government Advocate is requested to communicate this order to the Deputy Commissioner with a copy to the Tahsildar and ensure compliance to the said order by the next date of hearing.

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iii. List this matter on 15.07.2025.”

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In pursuant to the aforesaid order, today, learned HCGP files a memo dated 15.07.2025 along with communication from the office of the Tahsildar, Sirsi, dated 10.07.2025 and 11.07.2025 issued by the Revenue Officer of Sampakhanda Village, Sirsi Taluka, addressed to the Tahsildar,

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Sirsi, along with a report from the Village Administrative Officer, Phirka: Kalave, Sirsi Taluk and witness statements with the copies of their Aadhaar cards.

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Learned HCGP taking this Court through these documents submits that upon local inquiry conducted by the Tahsildar through the Revenue Officer and Village Accountant, it was found that Subraya Ganapati Hegde had gone missing about 67 years ago and had never returned to the village. Statements of local residents namely Sri.Raghavendra Lakshmi Narayan Dixit (age 71), Madhu Keshava Govinda Bhat (age 72), Ira Narayan Gadagowda (age 77), Ishwar Narayan Gowda, and Subraya Narayan Gowda (both aged about 70) as recorded would confirm that they had never heard of Subraya Ganapati Hegde’s whereabouts in the last 67 years.

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Heard. Perused the records.

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Section 108 of the Indian Evidence Act reads as

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under:

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“108. Burden of proving that a person is alive who has not been heard of for seven years. [Provided that when] [Substituted by Act 18 of 1872, Section 9, for "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

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he had been alive, the burden of proving that he is alive is [shifted to] [Substituted by Act 18 of 1872, Section 9, for "on".] the person who affirms it.”

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Section 108 of the Indian Evidence Act

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contemplates a legal presumption of civil death where a person has not been heard of for 7 years by those, who would naturally have heard from him. The burden lies on the plaintiffs only to prove this fact. If the plaintiffs being his siblings are able to discharge this burden, the onus to prove the otherwise would shift on the one who claims otherwise.

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In O.S.No.156/2020, the plaintiffs examined PW.1 and PW.2 and produced Ex.P.35 - a copy of permission issued by Swarnavalli Math to conduct obsequies of Subraya Ganapati Hegde. Though no police complaint was lodged, the report now presented before this Court as noted above confirms that whereabouts of Sri. Subraya Ganapati Hegde has remained unknown for over 67 years. Since the report noted above on the outcome of the official inquiry and supporting witness statements, the possibility of fabrication is ruled out. Therefore, this Court finds no impediment in allowing the appeal. Accordingly, the following:

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ORDER

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i) The appeal is allowed.

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ii) The judgment and decree dated 01.04.2024, passed in R.A. No.1 of 2021 on the file of the Senior Civil Judge and Prl. JMFC Court, Sirsi, Uttara Kannada is set aside.

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iii) The judgment and decree dated 27.07.2020, passed in O.S. No.156 of 2015 on the file of the I Additional Civil Judge and II Additional JMFC, Sirsi is restored and confirmed.

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This Court places on record its appreciation and efforts made by Shri.Praveen Devareddiyavar, learned HCGP, who rendered assistance in this matter, and the revenue officers, who acted promptly and effectively in compliance with the directions of this Court.

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Sd/(M.G.S. KAMAL) JUDGE

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VB/CT-ASC List No.: 1 Sl No.: 5

Dattatraya Ganapati Hegde v. the State of Karnataka

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Dattatraya Ganapati Hegde v. the State of Karnataka

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