Delhi District Court
Jai Prakash vs . The State & Anr. on 22 July, 2014
Jai Prakash Vs. The State & Anr.
IN THE COURT OF SH. DEVENDER KUMAR GARG
ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI
Suit No.: 379/12
Case ID No.:02402C0344462012
IN THE MATTER OF:
JAI PRAKASH
S/O LATE JEEVAN LAL SHARMA
R/O 54A, RADHEY SHYAM PARK EXTN.
DELHI110051 ... PLAINTIFF
VERSUS
1. THE STATE
2. THE SHO
P.S. PREET VIHAR
DELHI110092 ... DEFENDANTS
DATE OF INSTITUTION : 06.12.2012
DATE OF RESERVING THE ORDER : 22.07.2014
DATE OF DECISION : 22.07.2014
SUIT FOR DECLARATION
JUDGMENT
1. Plaintiff Jai Prakash has instituted the present suit with the prayer that his mother namely Mrs. Chanderwati W/o late Jeevan Lal Sharma R/o 54A, Radhey Shyam Park Extn., Delhi110051, be declared dead as having not been traceable for the last more than seven years.
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Jai Prakash Vs. The State & Anr.
2. Initially there was only one defendant viz The State. Later on SHO, Preet Vihar was impleaded as defendant no. 2 through an application under Order 1 Rule 10 CPC which was allowed vide order dated 12.11.2013.
3. The Notice of the present petition was given by way of publication for the general public in the newspaper 'The Statesman' dated 10.06.2013. Notice to witness was also served upon the MHC (R) of P.S. Preet Vihar alongwith DD No. 20A Dated 29.09.1994.
4. No member of general public has filed any objection to the petition.
5. On 12.11.2013, the following issue was framed for trial:
Whether plaintiff is entitled to the declaration prayed for?
The finding on the issue is as follows.
6. To prove his case, plaintiff examined himself as PW1, persons from his neighborhood namely Satpal & Jagdish as PW2 & PW3 and the official(Ct. Bhagmal Singh) from PS Preet Vihar as PW4.
7. PW1 proved the true copy of DD No. 20A, PS Preet Vihar, Dated 29.9.94 as Ex. PW1/A. He also proved the death of his father namely Jeevan Lal Sharma vide death certificate Ex. PW1/B. He produced the copy of his election ICard Ex. PW1/C showing the name of his father to be Jeevan Lal Sharma. Plaintiff also examined two other witnesses namely Sh. Satpal as PW2 and Sh. Jagdish as PW3. PW2 & PW3 deposed that they know plaintiff Jai Prakash and Suit No. 379/12 Page No. 2/6 Jai Prakash Vs. The State & Anr.
they are residing in his neighborhood. They further deposed that mother of plaintiff Jai Prakash is not traceable since 29.09.1994 and they had not heard of Smt. Chanderwati for last more than 18 years. PW2 filed proof of his identity in the form of Election ICard(Ex. PW2/A). PW3 filed proof of his identity in the form of Election ICard (Ex. PW3/A). PW4 deposed that as per circular no. 861160 dated 18.05.2011, the record upto 31.12.2011 was destroyed vide Order No. 3101200/HAR/E dated 17.02.2012. He filed a report in this regard and a copy of Order No. 3101200/HAR/E dated 17.02.2012 Ex. PW4/A. It is mentioned in report Ex. PW4/A that that daily diary (Roznamcha A & B) up to 31.12.2011 has been destroyed vide Order No. 3101200/HAR/E, Dated 17.2.12.
8. The Court has considered the plaint, affidavit of the plaintiff(PW1), affidavits of PW2 & PW3 and deposition of PW4. The plaintiff has deposed that his mother namely Mrs. Chanderwati has been missing from 29.09.1994 and all efforts by the family members and the police have failed to trace her.
9. The court has considered the evidence on record, the submissions of Ld. Counsel for plaintiff and perused the material on record.
10. It is seen that document Ex. PW1/A(DD No. 20A Dated 29.09.94 from PS Preet Vihar, Delhi) acknowledges the Chanderwati to be the wife of Jeevanlal who was reported to be missing since 29.09.94. The combined effect of the plaint, affidavit in evidence Ex. Suit No. 379/12 Page No. 3/6
Jai Prakash Vs. The State & Anr.
PW1/1 is that the plaintiff is more probably than not the son of Chanderwati.
11. The next aspect relates to the date from which Chanderwati has been missing. In this regard, PW1 proved DD No. 20A Dated 29.09.94 Ex. PW1/A. Since the date on DD Entry in question viz 29.9.94 has been corroborated by the police witness through seal on it, the Court may presume that the mother of the plaintiff has not been heard of since 29.09.1994.
12. In the present facts, the Court is of the conclusion that Smt. Chanderwati has been missing and has not been heard of by her son or persons known to her since 29.09.94.
13. The present suit relates to declaration of the mother of the plaintiff as dead. It would evidently be a near impossible task for a person to conclusively prove the death of a known person/relative who has not been heard of for a length of time. It is for this reason that the Indian Evidence Act incorporates presumptions interalia Sections 107 and 108 reproduced below:
107. Burden of proving death of person known to have been alive within thirty years.When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years.Provided that when the question is whether a man is alive or dead, and is proved that he has not been Suit No. 379/12 Page No. 4/6 Jai Prakash Vs. The State & Anr.
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.
14. The combined effect of these two provisions is that the initial burden to prove that the person who was shown to be alive within 30 years, is dead, is on the person who asserts that he is dead. He, however, will be said to have discharged that burden on his establishing that person has not been heard of for 7 years by those who would naturally have heard of him, had he been alive. Then the burden of proving that he is alive will be shifted to the person who maintains that he was alive.
15. In the present facts, the mother of the plaintiff has been reported missing from 29.09.94 and the suit was instituted on 06.12.2012. A period of more than 7 years has lapsed since the mother of plaintiff was last heard of. The son would be best placed to have heard from him in the event of the mother still being alive when father is also dead. Considering that the mother of plaintiff was also not mentally fit as mentioned in DD No. 20A Dated 29.09.94, the preponderance of probabilities hint towards her demise. There is no objection from any other person regarding the present missing status of the mother of plaintiff namely Chanderwati. The Court thus draws the presumptions under Section 107 & 108 of the Evidence Act in favour of the plaintiff. The plaintiff is held to have duly discharged the burden of proving that mother of plaintiff namely Smt. Chanderwati is Suit No. 379/12 Page No. 5/6 Jai Prakash Vs. The State & Anr.
dead. The date of death would be the date when she was reported to have gone missing i.e. 29.09.94.
16. Issue is decided in favour of plaintiff.
17. In view of the findings on above said issue, the suit is decreed in favour of the plaintiff in the following manner.
18. It is declared that Smt. Chanderwati W/o Late Sh. Jeevan Lal Sharma R/o 54A, Radhey Shyam Park Extn., Delhi110051, mother of plaintiff Jai Prakash is dead as not having been heard of/traceable for the last more than 7 years.
19. Let the decree sheet be drawn up accordingly.
20. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 22.07.2014 This Judgment contains 6 pages and each paper is signed by me.
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