JUDGMENT M. Lal, J. - This second appeal filed by the Defendant arises out of a suit for injunction. 2. The Plaintiffs brought the suit in respect of 22 plots which were said to be the Sir of Sabhajit, who was husband of Plaintiff No. 1 and son of Plaintiff No. 2. It was alleged that the Plaintiffs have all along remained in possession of the disputed plots and the Defendant had no concern with the same; that the Defendant fraudulently obtained an ex-parte decree against Sabhajit, a dead person, which amounts to interference with the Plaintiffs' Possession and so an injunction was claimed restraining the Defendant not to interfere with the Plaintiff's possession. 3. The suit was resisted, inter alia, on the ground that the Defendant was an Adhivasi of the 11 plots detailed in the written statement, because he was a sub-tenant of the Sir land u/s 2C(a)(ii) of ZA and LR Act and also because he was in cultivatory possession in 1359F. The decree obtained by him u/s 229B was said to operate as res judicata. 4. Both the courts below overruled the defence. They found that Sabhajit had not been heard of for the last 20 years; trial he must be presumed to be dead on the date of the suit, that is, December 8, 1955; and that the decree obtained by the Defendant was a nullity. The suit was accordingly decreed. It is against these concurrent findings that the present appeal has been instituted. 5. The only question of law, which has been urged in this appeal by Sri Sripatnarain Singh, Learned Counsel for the Appellant, is that it having not been proved by the Plaintiffs that Sabhajit was dead on February 8, 1955 or that it not having been proved that the decree obtained by the Defendant u/s 229B had been obtained by fraud against a dead person, that decree operated as res judicata and both the courts below have erred in holding otherwise. It is also his submission that the lower appellate court has not given any specific finding about the Defendant's, sub-tenancy u/s 20(a)(ii) and his cultivatory possession in 1359F, as required by supplementary ZA and LR Act, and so the judgment and decree of the courts below must be set aside. 6. Learned Counsel for the Respondents has controverted the argument of the Learned Counsel for the Appellant. 6. Learned Counsel for the Respondents has controverted the argument of the Learned Counsel for the Appellant. His contention is that reading Ss, 107 and 108 of the Indian Evidence Act together, and it having been found that Sabhajit was presumed to be dead on December 8, 1955, the burden lay upon the Defendant to prove that he was alive on any date anterior to it. He has supported the findings of the courts below. 7. I have heard Learned Counsel for the parties. I agree with the Appellant's Learned Counsel that the judgment of the lower appellate court could have been written in more clear language, but all the same, the lower appellate court having found that the Plaintiffs were in possession of the plots in dispute and the Defendant's name was for the first time entered in 1363F. After the ex-parte decree, it means that the Defendant was never in possession and even his name was entered as late as 1363 Fasli. The trial court did mention that the Plaintiffs were in possession, while the Defendant was not in possession either in 1356F or 1359F. In view of these findings it cannot be said that any thing, which was material to the case, has not been considered by the two courts below. 8. The real point however in the case is the effect of the ex parte decree obtained by the Defendant Appellant u/s 229B ZA and LR Act. That suit was filed by the Defendant for a declaration of his Adhivasi rights on February 8, 1955 against Sabhajit. He obtained an ex parte decree on July 6, 1955. Thereafter the present suit was filed on December 8, 1955, with the allegations stated earlier. According to the findings of the courts below Sabhajit has not been heard of for the last 20 years and has no particular date of death was proved, the lower appellate court rightly held that Sabhajit must be presumed to be dead on the date of the suit, that is, December 8, 1955. The question is who has to prove that Sabhajit was alive or dead on February 8, 1955, that is on the date when the Defendant filed the suit u/s 229B. The question is who has to prove that Sabhajit was alive or dead on February 8, 1955, that is on the date when the Defendant filed the suit u/s 229B. u/s 107 of the Indian Evidence Act, if it is shown that a person was alive within 30 years, the burden of proof that he is dead on a particular date would lie on the person who asserts it. Section 108 is in the form of a proviso to Section 107, and it lays down "When a 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 proof that he is alive is shifted to the person who affirms it". Both the courts below have given a concurrent finding that Sabhajit must be presumed to be dead on December 8, 1955, and consequently under the latter part of Section 108, it was for the Defendant to prove that he was alive on any date earlier to it. In fact according to the interpretation, which has been placed from time to time, on Sections 107 and 108, the concensus of opinion is that when death of a person is presumed at the time when the question of his death arose, then it is for the person, who asserts that he was alive or dead at a particular date, to prove the same. A reference in this behalf may be made to the Full Bench authority of Mohammad Sharif & another v. Bande Ali and others 8 ALJ 1952 in which it was held "the presumption merely is that he was dead at the time the question, whether he was alive or dead, arose, the burden of showing that he was alive being thrown upon the Defendants if it was necessary for them to do so". According to this observation of the Court the Defendant asserted or should be deemed to have asserted, when he obtained a decree on July 6, 1955, that Sabhajit was alive on February 8, 1955, when the suit u/s 229B was filed and so it was for him to prove that he was so alive. In the case of Jiwan Singh Vs. In the case of Jiwan Singh Vs. Kuar Reoti Singh and Another, AIR 1930 All 427 a Division Bench of this Court laid down: "The presumption arose by Section 108 is confined to the factum of death and not the exact time when death may have occurred". Similar is the view expressed in the case of Jangi Singh Vs. Gudri Singh and Another, AIR 1932 All 365 In this case, therefore, the only presumption which can be raised and which has been rightly drawn by the lower appellate court was that Sabhajit be presumed to be dead when the question arose, that is, on the date the suit was filed, that is, December, 1955. The Courts below have further found that Sabhajit has not been heard of for the last 20 years. Since it was necessary for the validity of the decree obtained by the Defendant to prove that Sabhajit was alive when the suit u/s 229B was Bled on February 8, 1955, it was for the Defendant to prove that he was alive on the date the suit was filed as well on the date of the service of the summonses and on the date the ex-parte decree was obtained in that suit, When a presumption of death has been raised in the present case the burden would be shifted to the Defendant to prove, particularly when Sabhajit has not been heard of for the last 20 years, that he was alive on any particular date prior to December 8, 1955. This has not been done and, therefore, it cannot be said that the courts below have erred in not giving effect to the ex parte decree or in not treating it to operate as res judicata. It is true that this ground has not been considered by two courts below and they have treated the decree to be a nullity on the ground that on the date the declaration of Adhivasi rights was sought the Adhivasi rights merged into Sirdari rights. This view cannot be endorsed, but all the same in this case it was for the Defendant to prove that Sabhajit was alive on any date earlier than December 8, 1955. I do not agree with Learned Counsel for the Appellant that it was for the Plaintiffs to prove that Sabhajit was dead on the date of the institution of the suit u/s 229B. I do not agree with Learned Counsel for the Appellant that it was for the Plaintiffs to prove that Sabhajit was dead on the date of the institution of the suit u/s 229B. In fact the Defendant had obtained an ex parte decree on the basis of which the Defendant claimed a right and in order that that decree should be binding, it was the business of the Defendant to prove that the decree had been validly obtained against the person who was alive and had not been obtained against the person for whose death the presumption had been raised under the law. The decree obtained by the Defendant therefore has no binding, nor has it any effect of res judicata. The courts below rightly decreed the suit. The appeal has no force. 9. The appeal is hereby dismissed with costs. Leave to special appeal is refused.