Judgment 1. Kalyani Devi filed a petition C.W.J.C. No. 6408 of 1995: Kalyani Devi V/s. State of Bihar & Ors., that her husband disappeared since 1981 and he be presumed to be dead and she be paid death-cum-retirement benefits such as family pension, gratuity, general provident fund and group insurance, etc. 2. The husband of Kalyani Devi Devendra Nath Mishra was an Assistant Teacher in Bhalu Rosa Harijan High School, Jamshedpur. 3. It needs to be placed on record that this Letters Patent Appeal which had been filed in 1997 remained pending and, thus, is being considered within the provisions of Section 34 of the Bihar Re-organisation Act, 2000. 4. The issue in the petition on which relief could not be granted was the aspect that the school where Devendra Nath Mishra may have taught as an Assistant Teacher was taken over on 15 January, 1982 with effect from 2 October, 1980. 5. Only two aspects have to be examined, (a) Whether the school had in fact been taken over within the meaning of Bihar Non-Government Secondary Schools (Taking over of Management & Control) Act, 1982 and (b) if the answer to this is in the affirmative then the rest is consequential. Under Section 108 of the Evidence Act, 1872, if a person has not been heard of for 7 years by those who would have heard of him if he had been alive, the burden to prove that he is alive is upon the person who affirms it. In the present case, the circumstances exist that the Assistant Teacher concerned has not been heard of and has otherwise not attended to his duty so as to be presumed that he is dead. Upon the existence of these circumstances, the widow Kalyani Devi in the light of the observation made in this order, would be entitled to post retirement benefits. 6. The order of the learned Judge, in effect, dismissing the petition on the ground of laches and not considering it, thus, is set aside. 7. The appeal is allowed.