C.M. Nos.3798-C of 2009 & 491-C of 2009 and -1- RSA No.222 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M. Nos.3798-C of 2009 & 491-C of 2009 and RSA No.222 of 2009 Date of Decision: 05.08.2009 Punjab State Electricity Board and others ...Appellants VERSUS Kulwant Kaur and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. P. S. Thiara, Advocate for the applicants-appellants. *** AJAY TEWARI J. (ORAL) C.M. No.3798-C of 2009 Affidavit of Balwinder Kumar, Under Secretary, Legal filed is taken on record. C.M. No.491-C of 2009 For the reasons recorded, delay of 120 days in filing the appeal is condoned. RSA No.222 of 2009 This appeal has been filed against the judgment of the learned lower Appellate Court reversing that of the trial court and thereby decreeing the suit of the respondents for declaration that Sulakhan Singh son of Arjan Singh, husband of respondent No.1 and father of respondents No.2 and 3 is C.M. Nos.3798-C of 2009 & 491-C of 2009 and -2- RSA No.222 of 2009 dead (having not been heard of since 1991) and for consequential relief of mandatory injunction directing the appellants to release all the death-cum- retiral benefits of the said Sulakhan Singh. The following questions have been proposed by the learned counsel:- “a) Whether a person can be declared to be dead if he has not been heard of for the last 7 years, but no report in this regard was lodged with the police, no notice in this regard was published in newspaper and no report of the police regarding untraceability of the person has been brought on record? b) Whether suit filed by plaintiff is within limitation?” With regard to question No.'a', learned lower Appellate Court has rightly held that under Sections 107 and 108 of the Indian Evidence Act it is not necessary that any police report etc. should have been filed but there should be evidence of the persons who are likely to have heard of the missing person, if he had been alive, and further that the burden of proving that he is alive shifts to the person who affirms it, which is a very important aspect. Thus, once the respondents had given cogent and credible evidence that they had not heard of Sulakhan Singh for the last more than 7 years the onus shifted to the appellants to establish that he was alive. With regard to question No.'b', learned Lower Appellate Court has held that Sections 107 and 108 only raise a presumption of death and not the date of death. Thus, it cannot be held that the suit filed by the respondents is not within limitation. Consequently, this appeal is dismissed. C.M. Nos.3798-C of 2009 & 491-C of 2009 and -3- RSA No.222 of 2009 No costs. As the main case has been disposed of therefore all the pending civil miscellaneous applications in the case also stand disposed of. ( AJAY TEWARI ) August 05, 2009 JUDGE ashish