JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against the judgment and decree dated August 3, 1973 dismissing appeal No. 311 of 1970-71/district Aligarh confirming judgment by Assistant Collector Ist Class, district Aligarh decreeing plaintiff's suit for division of half share in the disputed land. 2. The plaintiff filed the suit for declaration and division of half share in the dispute land being sister's son of Tej Singh and alleging the share of defendant No. 1 to be half alleging that Gunga was unheard of since 35 to 36 years and after his death Tej Singh and Ganga inherited in equal shares; that Tej Singh died on 1960. 3. The suit was contested by defendant alleging the share of the plaintiff to be only 1/3, that Goonga's share was inherited by Jeewa Ram his brother who was alive after Puran and after the civil death of Goonga and inherited the share of Goonga and his share is, therefore, is ?rd. 4. I have heard the learned counsel for the parties and have perused the record. 5. It has been argued that Gunga's civil death will be presumed 7 years prior to 1960 who was recorded as farmer since 1367 Fasli per application of the parties who knew that he was Farar since several decades and Ganga Prasad and Jeewa Ram inherited his share because Pooran Mal had died in 1935, 1936 as his son Tej Singh was recorded in 1344 Fasli then Jeewa father of the defendant was alive who was recorded in 1347 Fasli and brother's son is preferentially heir to sister's son even if the death is presumed 7 years ago Goonga being recorded Farar since 1367 Fasli. Reliance has been placed on 1979 A.W.C. 454. 6. It has been argued in reply that presumption of death of Goonga will arise after 7 years of being unheard of and both the courts below concurrently held that Goonga's share was inherited by both. Ganga and Tej Singh being brother's son, equally, which is the finding of fact which should not be interfered with. 7. The following pedigree is not disputed:- 8. It is admitted case of the parties that plaintiff is sister's son to Tej Singh and that Kundan and Ram Lal had died before Goonga became absconder. 9. Ganga and Tej Singh being brother's son, equally, which is the finding of fact which should not be interfered with. 7. The following pedigree is not disputed:- 8. It is admitted case of the parties that plaintiff is sister's son to Tej Singh and that Kundan and Ram Lal had died before Goonga became absconder. 9. The share of Goonga is in dispute as to whether it was inherited by Jeewa Ram and then by Ganga Prasad or was inherited by Ganga Prasad and Tej Singh if it was inherited by Jeewa Ram and then by Ganga Prasad the share of the defendant will be ?rd and of the plaintiff will be ?rd and if it was inherited by both Ganga Prasad and Tej Singh then the share of the parties will be half and half. 10. Sections 107 and 108 of Indian Evidence Act run as follows:- Burden of proving death of person known to have been alive within thirty years. "107. 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. Burden of proving that person is alive who has not been heard of for seven years. 108. 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." 11. These two sections do not lay down as to when a person is presumed to be dead or alive. They only lay down rule of evidence regarding burden of proving the factum of proving the person to be dead or alive i.e. when a person was alive within 30 years the burden of proving that he is dead is on person who affirms it and when it is proved that a person has not been heard for 7 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. Thus these two Sections do not lay down as to on what specific date or time the presumption of death arises. They only lay down when the burden of proving death or of being alive arises and on whom such burden lies. 12. It has been laid down laid down in 1980 R.D. page 28 as follows:- "No doubt inheritance cannot remain in abeyance but the succession opens only when the death takes place. As the succession is related with death, the primary requirement is to ascertain the date of death and as the presumption in respect of death can be drawn only when the question arises i.e. on the date when the suit is instituted or proceedings are initiated, the question of succession cannot be said to be in abeyance." 13. In the present case no such question arose in 1334 Fasli, 1344 Fasli and 1347 Fasli as Goong was recorded and there was no allegation during that period of Goonga of not being heard of for 7 years although Pooran had died before 1344 Fasli i.e. 1935, 1936. In the present case no such question arose in 1334 Fasli, 1344 Fasli and 1347 Fasli as Goong was recorded and there was no allegation during that period of Goonga of not being heard of for 7 years although Pooran had died before 1344 Fasli i.e. 1935, 1936. In 1969 during consolidation proceeding in C.H. Form 23 Tej Singh, Ganga was recorded Mafroor since 1367 Fasli, i.e., from 1960, i.e., he was not heard of for 7 years from person who would have heard him if he would have been alive, therefore, inheritance of the share of Goonga went in equal share of Tej Singh and Ganga defendant because the burden of proving that Goonga was alive even after 1980 or after 1367 Fasli or upto 1375 Fasli after the death of Tej Singh lay on Ganga which has not ben discharged, therefore, the courts below rightly held that share of Goonga was inherited by Ganga and Tej Singh being brother's sons of Ganga and the argument that Ganga must be presumed to have died before 1344 Fasli has got no force because there is no proof that in 1344 Fasli Goonga was not alive before 30 years and there was no question at that time that he has not been heard of for 7 years by Pooran or Jeewa or Tej Singh, therefore, the courts below came to right conclusion and held the shares of the parties to be half and half because the share of Ganga Prasad was half and share of Tej Singh was half and share of Tej Singh was inherited by the sister' son of plaintiff. Thus this appeal has got no force and is liable to be dismissed with costs and the judgments and decree passed by the courts below are liable to be confirmed. 14. In view of the above, this appeal is hereby dismissed with costs and the judgments and decree passed by the courts below are hereby confirmed. The trial court shall ask the plaintiff to take steps after preparation of lots and final decree. 15. Let the trial court's file be sent to it atonce for necessary action and steps for preparation of final decree shall be taken.