JUDGMENT M. R. Verma, J.: Feeling aggrieved by the judgment and decree dated May 18, 1993 passed by the learned Additional District Judge, Kangra at Dharamshala thereby confirming the judgment and decree dated November 23, 1991 passed by the learned Sub Judge, Dharamshala, the appellant (hereafter referred to as the defendant) has preferred the present appeal. 2. Brief facts leading to the presentation of this appeal are that the respondents (here-after referred to as the plaintiff) instituted a suit for grant of decree for declaration to the effect that the plaintiffs are co-tenants with defendant of the land bearing KhataNo.95 min. Khatuni No. 169 Khasra No. 36, 37, 38, 39, 41, 42, plots 6, area measuring 1-47-22 hects. and KhataNo.81 min, Khatuni No.153, Khasra No.72 areas measuring 0-19-98 hects. mal. Rs.0-95 paise, situated at Mohal Chandrun, Mauza Shahpur, Tehsil and District Kangra as entered in the Jamabandi for the years 1982-83 having 2/3rd share in the joint tenancy land with the defendant who has got l/3rd share. The plaintiffs are entitled to remain in possession as co-tenants with defendant on the suit land in future also. The entry showing the defendant in possession d£ the suit land as tenant on payment of rent in only a paper entry having been made without the consent and knowledge of the plaintiffs, it has been made unauthorisedly, illegally and without justification and that the plaintiffs inherited the tenancy rights with defendant after the demise of their father and the defendant has no right to dispossess the plaintiffs from the land in suit in any manner what-so-ever, the defendant is liable to be restrained by grant of permanent prohibitory injunction from dispossessing the plaintiffs from the suit land and be restrained from doing the aforesaid acts in relation to the land in suit." The case of the plaintiffs, as made out in the plaint, is that the land in suit was held by the father of the parties and after his death the land devolved on the parties whereby the plaintiffs succeeded, to 2/3rd share and the defendant to l/3rd share in the land and thus the parties became joint tenants of the suit land to the extent of the aforesaid shares. However, there is a wrong entry solely in the name of the defendant in the Revenue record which appears to be a clerical error. However, there is a wrong entry solely in the name of the defendant in the Revenue record which appears to be a clerical error. Thus, taking advantage of this wrong entry showing the defendant as the sole tenant of the suit land, the defendant in the month of August 1987 started cutting grass from the suit land and obstructed the plaintiffs from so doing, claiming exclusive tenancy and possession. Hence the suit. 3. The defendant contested the claim of the plaintiffs. In his written statement he raised the preliminary objections that the suit was not maintainable in the present form as the defendant is in possession of the suit land exclusively since 1970 and has become owner of the suit land, that the plaintiffs have no cause of action and locus standi to sue, that Civil Court has no jurisdiction, that the suit is not within time and that the suit is bad for non-joinder and misjoinder of necessary party and cause of action. On merits, while denying the claim of the plaintiffs it was averred that the land was never held by the father of the parties as a tenant and no right could devolve on his death. The defendant claimed to be the sole tenant in exclusive possession of the suit land since 1970 and denied existence of joint tenancy and possession of the plaintiffs over the suit land and claimed that the tenancy was never inherited from the father of the parties, as alleged. 4. Plaintiffs filed replication denying the defence taken in the written statement and easserted the claim as made out in the plaint with the further assertion that the plaintiffs earlier had no knowledge of the erroneous entry in the Revenue records and even if the tenancy of their father is not proved, being brothers the parties are holding the suit land as tenants and are in possession thereof. 5. On the pleadings of the parties, the learned trial Judge framed the following issues: "1. Whether the plaintiffs are co-tenants alongwith the defendant as alleged ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no cause of action and locus standi to sue ?OPD 4. Whether the Civil Court has no jurisdiction to try the suit ? OPD 5. Whether the suit is within time ? OPP 6. OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no cause of action and locus standi to sue ?OPD 4. Whether the Civil Court has no jurisdiction to try the suit ? OPD 5. Whether the suit is within time ? OPP 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties ? OPD 7. Relief." 6. Vide judgment dated November 23, 1991, the learned Sub Judge held issues Nos. 1 and 5 in the affirmative and issues No. 2 to 4 and 6 are held in the negative and accordingly decreed the suit. 7. Feeling aggrieved, the defendant preferred an appeal which was heard and decided by the learned Addl. District Judge (I), Kangra at Dharamshala who dismissed the appeal vide his judgment dated May 18, 1993. It is this judgment and consequential decree which are under challenge in this second appeal. 8. I have heard the learned counsel for the parties. 9. This appeal was admitted for hearing on the following substantial question of law: "Whether the said Shri Chuhru ceased to occupy the land in question in j the year 1962 and the tenancy rights in his favour stood automatically I extinguished and tenancy terminated in accordance with law ?" 10. At the time of hearing, arguments have not been addressed on this question and rightly so. It is not the case of either of the parties that Chuhru ceased to occupy the suit land with the result that it finally resulted in abandonment or surrender. No doubt, the appellant/defendant has averred in the memorandum of appeal that "the tenancy rights if any in favour of said Chuhru were surrendered and the owners of the land started cultivating the land", and that "As a matter of fact after the said Chuhru left the village and also relinquished his tenancy rights in favour of the owners, the owners started cultivating the land. Subsequently the owners inducted the present appellant/defendant as tenant over the land in question and a fresh tenancy in this regard was created by the owners of favour of the appellant/defendant". 11. Subsequently the owners inducted the present appellant/defendant as tenant over the land in question and a fresh tenancy in this regard was created by the owners of favour of the appellant/defendant". 11. Be it stated mat by making these averments in the memo of appeal, for the first time the defendant is taking a new defence by raising the plea of relinquishment/surrender of the tenancy by his father in favour of the owner and thereafter his induction as a tenant This was not raised by him in the written statement nor was it raised before the first appellate Court, whereas his consistent defence had been that his father was never a tenant over the suit land. The alleged relinquishment/surrender/abandonment as per the pleadings is not the case of either party and it is a mixed question of law and fact and, therefore, cannot be permitted to be raised for the first time in the second appeal in the absence of pleadings and opportunity to the parties to lead evidence on this count. More over, such a question cannot be effectively and finally decided in the absence of the landlords as party to the suit . 12. The learned counsel for the appellant, however, has contended that the suit of the plaintiffs has been decreed by the trial Court and such decree has been affirmed by the first appellate Court on the presumption that Chuhru had died and on his death the parties had jointly succeeded to the tenancy, whereas there is no pleading regarding facts on the basis of which Chuhru could be presumed to have died nor there is evidence warranting a conclusion to presume the death of Chuhru under Section 108 of the Evidence Act. 13. The plaintiffs undoubtedly could succeed if it was pleaded and proved that Chuhru held the tenancy and on his natural death or the death presumed under Section 108 of the Evidence Act the parties succeeded to the tenancy over the suit land. Both the Courts below acted on the presumption that Chuhru had died. The question as to whether Chuhru could be presumed to have died on the basis of the pleadings and evidence of the parties or such presumption has been drawn on imaginary facts which arises on the basis of the above submissions of the learned counsel for the defendant is a substantial question of law and calls for determination. The question as to whether Chuhru could be presumed to have died on the basis of the pleadings and evidence of the parties or such presumption has been drawn on imaginary facts which arises on the basis of the above submissions of the learned counsel for the defendant is a substantial question of law and calls for determination. 14. It may be pointed out that the plaintiffs in their plaint have simply averred that after the demise of their father the tenancy in question was jointly inherited by the parties. There is no pleading to the effect that Chuhru had left his house more than seven years before and thereafter he has not been freard of by those who would have naturally heard of him, whereas these particulars ought to have been pleaded in the plaint. Unless Chuhru was proved to have died or is presumed to have died the plaintiffs claim to have inherited the tenancy as claimed will be untenable. 15. The onus to prove that on the death of Chuhru the parties succeeded to the alleged tenancy as claimed, was on the plaintiffs. Though no proper particulars to raise presumption about the death of Chuhru were given in the pleadings, yet the plaintiffs have led some evidence to show that Chuhru is missing for the last about 20 to 27 years and the defendant has not led evidence to the contrary, rather, he also admitted that Chuhru is missing for the last 27-28 years. On the basis of this evidence the learned trial Judge has concluded that "from the perusal of the oral evidence led by the parties, it fully transpires that the whereabouts of Chuhru are not heard for the last more than 22-24 years, is admitted by the parties." The learned first appellate Court has in this respect observed that "Chuhru vanished somewhere about 20 years back preceding to the filing of the suit. He is not heard of for the preceding more than twenty years from the filing of the suit. When Chuhru was presumed to be legally dead, then the suit land was entered by the revenue officials in favour of tin? defendants." 16. Regarding the question of death/presumed death of Chuhru the trial Court and the first appellate Court proceeded to dispose of the suit and appeal on the basis of these observations. 17. When Chuhru was presumed to be legally dead, then the suit land was entered by the revenue officials in favour of tin? defendants." 16. Regarding the question of death/presumed death of Chuhru the trial Court and the first appellate Court proceeded to dispose of the suit and appeal on the basis of these observations. 17. It may be pointed out that once a state of thing is shown to exist, there is a presumption in law regarding continuance thereof for a period for which such state of things ordinarily lasts. In the matter of life and death, such presumption will be within the framework of Sections 107 and 108 of the Evidence Act which are reproduced herein below: "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." "108. Burden or proving that person is alive who has not been heard of for save 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." 18. Section 107 of the Evidence Act apparently raises presumption about the continuance of life and if a person is shown to have been alive within 30 years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive. This presumption, however, is rebuttable as per the povisions of Section 108 of the Evidence Act if it is shown that such person has not been heard of for seven years by those who, if he had been alive, would naturally have heard of him. Either of the presumptions, therefore, will arise on proof of the necessary ingredients. 19. As already stated, in the plaint no particulars necessary for raising the presumption-that Chuhru has died, have been pleaded. What emerges from the evidence on record is that Chuhru is missing for the last more than seven years but less than 30 years. Either of the presumptions, therefore, will arise on proof of the necessary ingredients. 19. As already stated, in the plaint no particulars necessary for raising the presumption-that Chuhru has died, have been pleaded. What emerges from the evidence on record is that Chuhru is missing for the last more than seven years but less than 30 years. Therefore, admittedly being alive within 30 years, he will have to be presumed alive within the scope of Section 107 of the Evidence Act unless it is established that he has not been heard of for seven years on the date when the presumption of his death is sought to be raised by those who would have, naturally heard of him if he had been alive. The evidence on record is only about the missing of Chuhru for the last 20 to 28 years and none has stated that he had not been heard of for the last seven years immediately preceding the institution of the suit by those who would have heard of him had he been alive. No doubt, two of the witnesses, namely, PW-1 Girdhari Lal, plaintiff and DW-1 Partap Chand, defendants, who are the sons of said Chuhru, have respectively stated that Chuhru is missing for the last 23-24 years and 27-28 years, but they do not say that they have not heard of Chuhru during this period or at least during the last seven years preceding the date of institution of the suit. Said Chuhru, admittedly, has his wife living and plaintiff No.2 Ramesh is his son. They have not been produced to state on oath that Chuhru has not been heard of by them for the requisite period enabling the raising of presumption of his death. 20. Be it stated that terms missing (Lapata) and not heard of (Unsuna) are not synonyms but have different meanings. When a certain object cannot be found or is not in its place, it is missing. Thus it is something which the eyes cannot trace though it may be in existence somewhere. The term not heard of means not told about or having no knowledge of. Therefore, mere missing of a person for more than seven years about whom it is not claimed that he had not been heard of for the requisite statutory period of seven years, cannot be presumed. to be dead. The term not heard of means not told about or having no knowledge of. Therefore, mere missing of a person for more than seven years about whom it is not claimed that he had not been heard of for the requisite statutory period of seven years, cannot be presumed. to be dead. In the absence of the requisite pleading and the proof that Chuhru had not been heard of for seven years immediately preceding the presentation of the plaint, by those who would have naturally heard of him, both the Courts have) fallen in error in presuming that Chuhru had died. 21. The observations of the learned first appellate Court quoted in detail heretofore are not based on the material on record nor are based on correct interpretation of the relevant law. According to these observations, the suit land was entered by the Revenue officials in the name of the defendant when Chuhru was presumed to be legally dead. Evidently, the learned Additional District Judge has himself not arrived at the presumption of death of Chuhru but based his conclusion of the death of Chuhru as presumed by the Revenue officials. Primarily, there is no evidence to prove that the entries in the revenue records came to be changed in favour of the defendant on the basis of the presumption of death of Chuhru. Secondly, the entries alleged to have been made in favour of the defendant were allegedly so made in the year 1982-83, that is, about five years before the institution of the suit and there is nothing on the record to show that these were made on the basis of presumed death of Chuhru nor such a presumption could date back to a time when the question of life and death of Chuhru had not been raised before the Court 22. The learned single Judge of this Court, while dealing with the question of presumptions under Sections 107 and 108 of the Evidence Act, in case Smt. Mathru & Ors. The learned single Judge of this Court, while dealing with the question of presumptions under Sections 107 and 108 of the Evidence Act, in case Smt. Mathru & Ors. v. Smt. Rami, AIR 1986 HP 6 held as under : 12...........The only presumption undo* Section 108 of the Evidence Act is that a person is presumed to have died if he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive and the burden of proving that the person is alive is shifted to the person who asserts it. Under Section 107 of the Evidence Act, if it is shown that a person was alive within 30 years, then the burden of proving that he is dead is on the person who asserts it There is no presumption that a person who has not been heard of for a period of not less than 7 hears died at the end of first 7 years or on any particular date. The burden of proving the date of death of a person is always upon the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under Section 108 of the Evidence Act is mat a person is dead, if he has not been heard of for seven years and this presumption only arises when a question is raised in a Court etc. as to whether a person is alive or dead. Such presumption can earliest be drawn when a dispute is brought in a Court or proceedings." 23. Similarly, in case Paras Ram v. Lachhman & Ors., 1995 (3) S.L.J. 2303, it was held as under: "11. This section is proviso to Section 107 of the Act which lays down that when a man is shown to be alive within 30 years, the burden of proving mat he is dead is on the person who affirms it There is no presumption that a person who has not been heard of for a period of not less than 7 years died at the end of first 7 years or on any particular date. The burden of proving the date of death of a person is always upon the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under Section 108 of the Indian Evidence Act is that a person is dead if he has not been heard of for 7 years and mis presumption only arises when question is raised in Court as to whether a person is alive or dead and onus of proving mat the death took place at any particular time within 7 years lies upon the person who affirms it Such presumption can earliest be drawn when a dispute is brought in a Court or proceedings. This view has been consistently followed by decisions referred to above except the two dissenting judgments of Mysore and Andhra Pradesh High Courts, relied upon by the learned Counsel for the defendants." 24. Thus in view of the above settled proposition of law, it could not be presumed that it was consequent on the presumed death of Chuhru that entries in the Revenue records came to be changed in favour of the defendant 25. The conclusion thus is that the Courts below have raised the presumption of death of Chuhru without any pleading to drawn such presumption and there being no cogent and reliable evidence to presume such death even at the time when such question arose. Therefore, presuming the death of Chuhru about 5 years before the institution of the suit in the absence of pleadings and proof by the Courts below is not sustainable. 26. The claim of the plaintiffs is based on the alleged inheritance. Since Chuhru cannot be presumed to be dead, therefore, succession to die tenancy in question has not opened and there cannot be inheritance of the tenancy as claimed. 27. As a result this appeal is allowed and the impugned judgment and, decree are set aside and the suit of the plaintiffs/respondents is dismissed. Costs on parties. Appeal allowed.