1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 382 OF 2009 1. Shri Pradeep Baburao Mali, Age 21 years, Occ. Agriculture and student. 2. Shri Girish Baburao Mali Age 19 years, Occ. Agriculture Both residents of : At post Omerga, Taluka Omerga, District Osmanabad. .. Petitioners Versus 1. The State of Maharashtra through the Collector, Osmanabad, District Osmanabad. 2. Sau Savita Dhananjay Linge, Age 31 years, Occupation Household Resident of : At Post Tambari District Osmanabad. 3. Sau. Jyoti Mahesh Todkar, Age 25 years, Occupation : Agriculture Resident : At Post Morwad, Taluka Wadwani, District Beed. .. Respondents. --- Mr. Mukul Kulkarni, Advocate for petitioner. CORAM : B.R. GAVAI,J. DATE : 21st November, 2009. ORAL JUDGMENT :- 2 1] By way of present petition, the petitioner challenges the order dated 16th September, 2009, thereby returning the plaint filed by the present petitioners. 2] The suit has been filed by the petitioner for a declaration that the father has not been heard of since 1987 has been alive. It appears that there was an office objection by the Assistant Superintendent in the office of the learned Trial Judge, that there was no cause of action stated in the plaint. Upholding this objection, the learned Judge has held that there was no cause of action for the plaintiff and, therefore, the plaint was returned. Hence, this petition. 3] From the perusal of the plaint itself, it can be seen that the plaintiffs/petitioners have averred that their father Baburao Apparao Mali was missing since 1987 and has not been heard of alive. It has been stated that when the plaintiffs went to Talathi for requesting him to enter their names in the revenue records, the Talathi refused to enter their names for want of a death certificate. It is further averred that it was therefore found necessary to file a suit for declaration. 4] Section 108 of the Indian Evidence Act, reads thus :- “Provided 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 3 if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.” From the perusal of the said section, it would reveal that when a person 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 on the person who affirms it. 5] It can be seen that the petitioners are sons of the deceased and as such, they would have naturally heard of him had he been alive. The petitioners have also specifically stated in the plaint that since the Talathi refused to enter their names in the 7 x 12 extract, it was found necessary to seek such a declaration. It is clear that in such type of suit, the mere fact that the person has not been heard of for 7 years by the persons who would have naturally heard of him, had he been alive, would give a cause of action. Apart from that, the petitioners have specifically averred in the plaint that refusal by the Talathi to enter their names in the 7 x 12 extract give them a cause of action to file the suit. I find that the learned trial Judge has grossly erred in returning the plaint. Apart from holding that there is no cause of action, he has also gone into the merits of the matter and observed that the petitioners have not produced any material on record like police reports etc. to prove that their father has not been heard of for a period of last 7 years. All these questions would be a matter of evidence which could be recorded only after the plaint is admitted. In that view of the matter, the impugned order is unsustainable in law. 4 6] Rule is,therefore, made absolute in terms of prayer clause (A), with no orders as to costs. [B.R. GAVAI,J.] Grt/-