IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.193 of 2004 Samim @ Guddu S/o Farid resident of Mohalla Topkhana Bazar P.S. Kotwali Dist. Munger Plaintiff-Appellant-Appellant Versus Karun Mian S/ o Sawkhi Mian resident of Mohalla Topkhana Bazar P.S. Kotwali Dist. Munger Defendant-Respondent-Respondent ------------ For the Appellant: Mr Abbas Haider, Advocate Mr Kamil Akhtar, Advocate For the respondent: Mr Triloki Nath Maitin, Sr. Advocate ----------- 07/ 04.01.2010 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgment and decree of the learned courts below. 3. This matter arises out of Title Suit no.65 of 1994 (52/1996) filed by the plaintiff for declaration of title over the suit house and for other ancillary reliefs. The said suit was contested by the defendant-respondent-respondent claiming that since the father of the plaintiff was alive he had no right to claim title over the suit property. 4. It transpires that in the year 1996 the plaintiff filed an application for amendment of the plaint and also filed supplementary affidavit stating that his father had been traceless since 1988. In the said circumstances the question of maintainability of the plaint was considered by the learned trial court which found that even according to the claim of the plaintiff his father became traceless since 1988 and the suit was filed in the year 1994 i.e. only within six years and hence the statement made in the plaint was clearly barred by the provision of law - 2 - which provided that the presumption of death can only be arrived at after a person remains traceless for over seven years. Accordingly, plaint was rejected by the learned trial court under Order VII Rule 11 of the Code of Civil Procedure vide its judgment dated 22.02.1997. 5. It transpires that against the aforesaid judgment the plaintiff filed Title Appeal no. 11 of 1997 which was also dismissed by the learned Additional District Judge-cum- Fast Track Court, Munger vide his judgment dated 22.05.2004. Against the aforesaid judgments of the learned courts below the instant second appeal has been filed. 6. Although learned counsel for the appellant vehemently challenges the aforesaid judgments of the learned courts below but it is quite apparent that according to his own case his father had become traceless since 1988 whereas the suit was filed in the year 1994 i.e. much within the period prescribed that is seven years. 7. In the said circumstances this Court does not find any illegality in the impugned judgments of the learned courts below. Accordingly, this second appeal stands dismissed with liberty to the plaintiff-appellant to file a fresh suit after the death of his father either factual or legal. shahid (S.N.Hussain,J)