MUHAMMAD SARWAR AND Another vs FAZAL AHMAD AND ANOTHER

1. NASIM HASAN SHAH, J.-This appeal, by leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court passed on 22-12-1971 in R. S. A. No. 314 of 1959. It arises out of a suit for declaration instituted by the present appellants in respect of ownership of 120 Kapals of agricultural land situated in village Sehali Ferozal of Tehsil Kahuta in Rawalpindi District. The land was originally in the occupancy tenancy of one Fazal Dad who allegedly disappeared sometime in 1938 leaving the management and cultivation of the land to respondent No. 1 (Fatal Ahmad). The said respondent (Fatal Ahmad) obtained ownership rights of the land in 1952 on the basis of an amendment introduced in the year 1951 in the Punjab Tenancy Act (Act IV of 1951). Thereupon, the present appellants claiming to be the owners of the land ins--tituted a suit on 9-5-1955 alleging that the original occupancy tenant namely Fazal Dad had abandoned the tenancy with the result that this tenancy rights had been extinguished and, therefore, it was not possible for Fazal Dad to have inherited the tenancy rights. The suits was dismissed by the trial Court on the ground that Fazal Dad had made proper arrangements for the cultivation of the land in his occupancy tenancy ; consequently, the respondent Fazal Ahmad was entitled to inherit the occupancy rights and had rightly obtained the ownership in the land as a Muslim heir of Fazal Dad.

2. Wk, Feeling aggrieved, the appellants lodged an appeal against this judg--ment. This was accepted by the learned Senior Civil Judge (exercising appellate powers) on the ground that inasmuch as the whereabouts of Fazal Dad had not been heard of for a period of more than 7 years he must be presumed to be dead at the time Act IV of 1951 came into force. The suit of the appellants was decreed in view of this finding ; whereupon Fazal Ahmad respondent moved the High Court by a second appeal.

3. The High Court observed that the Courts below had recorded a concurrent finding of fact to the effect that although Fazal Dad had dis--appeared sometime in 1940 and had not since been heard of but he had made arrangement for the cultivation of the land. Accordingly, his occupancy rights were not extinguished by reason of his disappearance. In this view of the matter the occupancy tenant would be entitled to obtain ownership rights in accordance with the amendment introduced in the Punjab Tenancy Act in 1951 provided it could be shown that the respon--dent Fazal Ahmad was entitled to succeed to the tenancy held by Fazal Dad and was covered by that law. In this connection it was observed that by the amendment made in the Tenancy Act, section 59 of the Punjab Tenancy Act had been amended so as to provide that succession to a Muslim tenant having a right of tenancy on any land on his death would be determined in accordance with the provisions of Muslim Personal Law (Shariat). Accordingly, Fazal Ahmad could succeed to the occupancy rights of Fazal Dad only if it was found that the amended section 59 was applicable to the case. If the original section 59 applied a Muslim male could inherit the occupancy rights if the common ancestor had also occu--pied the land. In so far the common ancestor of Fazal Dad and the respon--dent Fazal Ahmad had not admittedly occupied the land, Fazal Ahmad could not succeed if the amended section 59 was applicable to the case. The crucial question, therefore, was whether the succession in this case was governed by the original or the amended section 59. The answer to the above question depended on the circumstance whether the original tenant Fazal Dad could be presumed to have died before or after the amendment introduced in 1951.

4. The High Court took the view that section 108 of the Evidence Act merely raised a presumption that the person in question is dead on the date of the suit and did not refer in any way as to the date of his death. Hence, merely because the original tenant was not heard of since 1940 it could not be held that he had died in 1947, before the enforcement of the Punjab Tenancy (Amendment) Act, 1951 (Act IV of 1951). On this view of the matter it was found by the High Court that the succession to the tenancy would be governed by the amended section 59 of the Punjab Tenancy Act and, therefore; the respondent would be entitled to inherit the tenancy and to obtain the ownership rights.

5. Leave was sought from this Court on the ground that the learned Judge in the High Court was in error in thinking that Fazal Dad could not be presumed to have died in 1947 and that this presumption could arise only A on the date of the suit. The Court granted leave to examine the question whether the interpretation placed by the High Court on sec--tion 108 of the Evidence Act was correct as there was a conflict of autho--rities on this question.

6. The provisions of law requiring consideration in this connection are sections 107 and 108 of the Evidence Act of 1872 which read as under :-- "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."

7. "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 it is proved that he 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 shifted to the person who affirms it."

8. The learned counsel for the appellants in support of his contention has mainly relied on a judgment of a Division Bench of the West Pakistan High Court (Peshawar) in Muhammad Afsar and others v.

9. Mst. Khatun and others (PLD 1957 (W. P.) Pesb. 1In this case it was held that the presumption of death should be raised with regard to the date of the event which is the basis of the action and not with reference to the date of the suit.

10. On the other hand, Mr. Zaki-ud-Din Pal appearing on behalf of respondent No. 1 has relied upon a decision of the Full Bench of the Lahore High Court in Punjab and others v. Natha and others (AIR 1931 Lah. 582) in which it was held that where a person has not been heard of for seven years when a suit is instituted, section 108 comes into operation and raises a presumption that at the institution of the suit he was dead, but no presumption arises as to the date of his death, which has to be proved in the same way as any other relevant fact in the case. We observe that in reaching the above decision the learned Judge of the Lahore High Court relied on a judgment of the Privy Council reported as Lal Chand Marwari v. Mahant Ramrup Gir and another (A 1 R 1926 P C 9 We also note that recently a Division Bench of the Lahore High Court consisting of Mr. Justice Muhammad Afzal Zullah (now a Judge of this Court) and Mr. Justice M. M. Bhatti (as he then was) have expressly dissented from the decision rendered in Muhammad Afsar and others v. Mst.

11. Khatun and others (.Supra) and have held that section 108 of the Evidence Act does not fix the time of death and that the Court is not debarred from entertaining evidence which shows that the death occurred before expiry of seven years, notwithstanding the presumption of death ; see Hayat v.

12. Niamat Bibi and others (PLD 1978 Lah. 245)

13. After having heard the learned counsel for both the parties and con--sidering the relevant case- law we are inclined to agree with the view taken by the learned Judges in the Lahore High Court in Hayat's case (supra) that sections 107 and 108 of the Evidence Act merely aim at regulating questions relating to the burden of proof and are not intended to fix the date of death which fact must be established through positive evidence.

14. It is to be observed that the words "when the question is" occurring in both sections 107 and 108 have reference only to question of the burden of proof at the trial and not at any antecedent point of time. Thus, if a person has not been heard of for seven years there is a presumption of law that he is dead but this presumption does not extend to the date of death. Indeed there is no presumption that he died at the end of the first . Seven years, or at any particular date. This fact has necessarily to be proved as a fact because section 108 does not direct the Court to presume that the person who has not been heard of for the last seven years had, in fact, died at the expiry of seven years. It only provides that such a person is presumed to be dead without fixing the time of death. It is for thisreason that where it is necessary to establish that a person died at any particular time such a fact must be proved by positive evidence. Thus, notwithstanding the presumption of death it would be possible for the Court to give a finding that it occurred after the expiry of the period of seven years since the time when he was last heard of, if the evidence so warrants.

15. The upshot is that section 108 of the Evidence Act merely creates a presumption that the person, who has not been heard for seven years, is dead, at the date of the suit, and does not refer in any way as to the date of his death. Which has to be proved in the same way as any other relevant fact in the case.

16. The result is that we agree with the interpretation placed by the High Court on the provisions of sections 107 and 108 of the Evidence Act of 1872 and find no force in this appeal which is, accordingly, dismissed. How--ever, as the question raised was a delicate one the parties will be left to bear their own costs.