20.The case had a long drawn and chequered history. At the first instance, the petitioner contended that proceedings cannot be carried on under the provisions of the Act. Such contention was repelled in the earlier round of litigation and there was a pointed direction to the respondent by observing that it is open to the respondent to draw a presumption as to the factum of the death on the expiry of seven years and it is for the respondent to determine the date of death. Undoubtedly, the respondent failed to follow this direction and fixed the date of death well before the expiry of seven years. The Court gave a liberty to the petitioner to establish that Gajapathi Raju was alive even subsequently, however, the petitioner did not avail that opportunity. Anticipating such contingency, the Court observed that if the petitioner does not avail the opportunity, it is open to the respondent to rely upon the presumption under Section 108 of the Evidence Act that would operate against the petitioner as to the factum of death and determine the exact date of death on the available materials. Thus, the respondent ought to have determined the exact date of death on the materials, which obviously was not available with the respondent. In the alternative, he was entitled to draw suitable presumption as to the date of death and this presumption can be drawn under Section 108, which the Court has specifically pointed out, can be only on the expiry of seven years. Therefore, the respondent did not follow the directive issued by this Court in the earlier writ petition.
