JUDGMENT 1. - This first appeal under Section 96 C.P.C. arises out of the judgment and decree dated 25.10.1980 passed by the learned Additional District Judge No. 1, Bharatpur, by which the learned Judge has decreed plaintiff's suit for partition of the suit property. 2. Plaintiff Nawal Kishore filed a suit for partition claiming half share in the property described in para 1 of the plaint. It was averred that plaintiff and respondent Mangal Ram are real brothers. They have been residing together in the ancestral property situated in village Kumher, which is sought to be partitioned. Defendant Mangal Ram died during pendency of suit and his legal representatives namely defendants No. 1/1 to ⅕ were brought on record. 3. Om Prakash, one of the legal representatives of late Mangal Ram contested the suit by filing written statement and denied the averments made in the plaint. It has been pleaded that they are three brothers, namely defendant Om Prakash himself, plaintiff Nawal Kishore and one Darbari Lal and the suit property is the ancestral property of the plaintiff, defendant and Darbari Lal. It has also been pleaded that in addition to the suit properties, there is one plot situated in Gur-ki-mandi, Kumher which was purchased in the name of plaintiff by the income of joint family and as such this property is also the joint property of all the three brothers. The defendant averred that the entire properties have already been partitioned among late Mangal Ram, Nawal Kishore and Darbari Lal through a family settlement dated 15.8.1962 and therefore, no question of any partition does arise. According to defendant Om Prakash, third brother Darbari Lal is alive and therefore the plaintiff could have claimed only ⅓rd share in the properties, but since partition has already taken place, the plaintiff has no share in the suit property and the suit is liable to be dismissed. 4. The plaintiff submitted rejoinder to the written statement and denied the averment made in the written statement that Darbari Lal is alive. According to him, Darbari was missing since 1966 and nothing was heard of till filing of the suit that he was alive and therefore, presumption under law would be that Darbari Lal has expired. He had no issue as he was bechalor. He also denied that the plot in Kumher was purchased by the joint income of plaintiff and defendant. According to him, Darbari was missing since 1966 and nothing was heard of till filing of the suit that he was alive and therefore, presumption under law would be that Darbari Lal has expired. He had no issue as he was bechalor. He also denied that the plot in Kumher was purchased by the joint income of plaintiff and defendant. The plaintiff himself had purchased the plot in Kumher by his own income and therefore, there was no question of the plot being included in the suit. He categorically denied the family settlement alleged to have taken place in 1962. 5. On the basis of pleadings. of the parties, the learned trial Court framed issues and at the conclusion of trial decreed the plaintiff's suit and declared that plaintiff would be entitled to have half share in the suit property. Hence the present appeal. 6. I have heard learned counsel for the parties and gone through the impugned judgment and the evidence on record. 7. The first question that falls to my consideration is whether the property in possession of plaintiff which was purchased in his name by the joint family income is liable to be partitioned? 8. Defendant Om Prakash in his written statement has made an averment that plot situated in Gur-ki-mandi, Kumher was purchased in the name of plaintiff by the income of joint family and therefore this property belongs to all the three brothers. That apart, he has stated in his statement that his father had purchased the aforesaid plot in the year 1951-52, in the name of his brother Nawal Kishore. Since the defendant has taken the plea that the plot in question was a joint family property, inasmuch as it was purchased by his father in the name of his brother Nawal Kishore, therefore, the burden to prove this plea was solely on the shoulders of defendant. However, except the averment made in the written statement and the statement on oath, the defendant has not produced any documentary evidence in proof of his plea that his father had purchased the plot situated in Gur-ki-mandi, after paying sale price as averred in the written statement. It is thus evident that defendant Om Prakash has not been able to prove that the plot situated in Gur-ki-mandi is the joint family property. It is thus evident that defendant Om Prakash has not been able to prove that the plot situated in Gur-ki-mandi is the joint family property. On the contrary, the plaintiff has specifically stated in his statement that he has purchased the said plot from his own income. To prove this fact, he has produced a copy of the application submitted to the Gram Panchayat seeking permission to raise construction over the said plot. He has also produced approved map. That apart, on raising objection by the Municipal Board, Kumher as to the ownership of the said plot, the plaintiff had filed a suit for declaration and injunction against the Municipal Board and the trial Court vide its judgment and decree Ex.8 declared the ownership of the plaintiff over the said plot. In this view of the matter, the finding of the trial Court that the plot in Gur-ki-mandi, Kumher is the self acquired property of the plaintiff cannot be interfered with. 9. Learned counsel appearing for the defendant appellants has strenuously contended that plaintiff's suit is liable to be dismissed only on the ground that he could not have brought the suit for partition because partition of the joint family property between the parties had already taken place on 15.8.1962 through ,a family settlement. 10. Undisputedly, the burden to prove that partition had already taken place through family settlement and therefore, the plaintiff had no right to bring the suit for partition, was on the contesting defendant. To prove the family settlement alleged to have taken place, the defendant has examined himself and one Lala Ram Sharma. He has also produced on record family settlement Ex.A-2, receipt in respect of recovery of tax Ex.A-3, copy of register of Gram Panchayat Ex.A-4 and copy of judgment dated 11.12.1973, Ex.A-5 of Gram Panchayat. DW-1 Om Prakash in his statement has stated that his father Mangal Ram uncle Nawal Kishore and Darbari Lal had put signatures on family settlement Ex.A-2, in his presence. DW-2 Lal Ram has stated about the partition having taken place in his presence. According to him, Nawal Kishore, Mangal Ram and Darbari Lal had put their signatures on the settlement. Plaintiff Nawal Kishore has categorically denied partition by family settlement. He has also denied his signatures on Ex.A- 2. DW-2 Lal Ram has stated about the partition having taken place in his presence. According to him, Nawal Kishore, Mangal Ram and Darbari Lal had put their signatures on the settlement. Plaintiff Nawal Kishore has categorically denied partition by family settlement. He has also denied his signatures on Ex.A- 2. It appears from the evidence that plaintiff served a notice dated 10.12.1974 Ex.1 on defendant Mangal Ram requesting him to make partition of the property. The plaintiff has also produced on record the postal receipt Ex.2 and acknowledgment Ex.3 so as to establish that he served notice Ex. -1 on defendant Mangal Ram. The acknowledgment receipt Ex.3 bears the signatures of Mangal Ram. Defendant Mangal Ram has also sent reply (Ex.4) to the notice of the plaintiff. In the reply Mangal Ram has specifically replied that he is ready for partition. DW-1 Om Prakash has admitted in his statement that the address of Mangal Ram written on Ex.3 is the correct address and the letter sent at this address must reached to the addressee. However, in later part of his statement, the witness deposed that in the month of December, his father Mangal Ram was residing at Jaipur and not at village Kumher. I am not prepared to accept this statement for the simple reason that summon (Ex.D-17) of the suit was served on defendant Mangal Ram on 8.12.1975 at Kumher address and therefore, it cannot be said that Mangal Ram was residing at Jaipur. In this view of the matter, had there been partition through family settlement in 1962, there was no occasion with defendant Mangal Ram to accept partition in his reply (Ex.4) to the notice served by the plaintiff. The relevant portion of reply Ex.4 may be quoted below : "MAINE KABHI BHI TUMSE BATWARE KA INKAR NAHIN KIYA HAI AND NA NOTICE SE PURVA BHI TUMNE KABHI KOI BATWARE KA PRASHAN HI MUJHSE KIYA HAI. PHIR BHI JIS CI IEEJ MEIN TUMHARA HAQ HAI MEIN USKE BATWARE KE LIYE TAIYAAR HOON". That apart, defendant Om Prakash in his statement has admitted to have sent a letter dated 9.2.1968 Ex.7 to plaintiff Nawal Kishore. In this letter Om Prakash has stated that to ensure safety of the shop, it is necessary to get boundary wall constructed. If not convenient, at-least there should be a 'Kachhi' boundary wall. That apart, defendant Om Prakash in his statement has admitted to have sent a letter dated 9.2.1968 Ex.7 to plaintiff Nawal Kishore. In this letter Om Prakash has stated that to ensure safety of the shop, it is necessary to get boundary wall constructed. If not convenient, at-least there should be a 'Kachhi' boundary wall. It may be noticed that as per alleged settlement, Ex.A-2 Darbari Lal and Mangal Ram had one shop each in their shares. If this fact is taken to be true, then where was the occasion with defendant Om Prakash to make a request to the plaintiff in 1974 for construction of boundary wall of the shop. 11. Apart from above, some glaring facts also exist on record which are necessary to be noticed. As per family settlement, Ex.A-2, the plot situated in Gur-ki-mandi, Kumher came in the share of plaintiff. As stated above, this plot was the self acquired property of the plaintiff and therefore, there was no question for inclusion of this plot in partition alleged to have taken place through family settlement. A glance at the family settlement Ex.A-2 shows that one K.C. Goyal was a witness to this document, but surprisingly enough Mr. Goyal has not been examined in evidence on behalf of defendants. Further, DW-2 Lala Ram scribe of Ex.A-2 is the office colleague of defendant Om Prakash, being both the employees of Panchayat Samiti. 12. From what has been discussed above, it must be concluded that defendants have not been able to prove that partition of the properties among the parties had taken place in the year 1962 through family settlement Ex.A-2. 13. The only question which now requires consideration is whether Darbari Lal, brother of plaintiff and uncle of defendant Om Prakash S/o Mangal Ram is alive and he has share in the property sought to be partitioned? 14. The suit was filed on 19.4.1975. The plaintiff has averred that his brother Darbari Lal was missing from 1966. To prove this averment, the plaintiff has examined in evidence PW-2 Bal Swaroop, PW-3 Badri Prasad, PW-4 Hari Ram Sharma, PW-5 Ganga Sharan and PW-6 Gaya. Prasad. The plaintiff in his rejoinder to written statement filed by defendant Om Prakash has made an averment that he has not seen Darbari Lal from 1966. After 1966 nothing is known as to the where abouts of Darbari Lal. Prasad. The plaintiff in his rejoinder to written statement filed by defendant Om Prakash has made an averment that he has not seen Darbari Lal from 1966. After 1966 nothing is known as to the where abouts of Darbari Lal. Even it is not known whether he is alive. PW-3 Bal Swaroop has stated that there is no information about Darbari Lal for last 10-12 years and that he did not visit Kumher during last 10-12 years. He has not even heard about the existence of Darbari Lal at any place. Similar are the statements of other witnesses. On the contrary defendant Om Prakash has stated that Darbari Lal is alive and is residing at Bombay. He had visited Kumher about 3 years back. Defendant Ved Prakash S/o defendant Mangal Ram has denied to have written letter Ex.9 to plaintiff Nawal Kishore. He has also denied his signatures on Ex.9. According to him, Darbarilal used to meet him at Jaipur and lastly lie met him in 1975-76. However, the fact remains that this letter Ex.9 written by defendant Ved Prakash to plaintiff Nawal Kishore clearly mentions that "BOMBAY WALE CHACHAJI 23.10.1966 KI SAAM SE AKSMAT KAHIN CI-IALE GAYE HAI'. Ex.13 is the letter dated 1.7.1967 of Hari Ram Sharma which mentions that on being asked from the owner of the hotel at which Darbari was engaged, the owner replied that he (Darbari)' had gone a year earlier. It appear that the defendants by adducing evidence have tried to prove that Darbari was alive at-least two years prior to the filing of suit. On comparative evaluation of the evidence adduced by the respective parties, I find that the evidence adduced by the defendants is inconsistent. DW-1 Om Prakash who is the contesting defendant has. stated in his statement that a shop which was mortgaged with Brijlal Nathilal was given in the share of Darbarilal and Darbarilal redeemed this shop from mortgage in 1967. Meaning thereby that Darbarilal was alive in 1967. However, to prove this fact, the defendant has neither produced the mortgage deed nor has examined either Brijlal or Nathilal. By doing so defendant Om Prakash could have falsified the statement of plaintiff Nawal Kishore that Darbari Lai was missing from 1966. 15. Undisputedly, Darbarilal was a resident of village Kumher. Meaning thereby that Darbarilal was alive in 1967. However, to prove this fact, the defendant has neither produced the mortgage deed nor has examined either Brijlal or Nathilal. By doing so defendant Om Prakash could have falsified the statement of plaintiff Nawal Kishore that Darbari Lai was missing from 1966. 15. Undisputedly, Darbarilal was a resident of village Kumher. From the evidence, both ocular and documents adduced by the respective parties, the only inference that can be drawn is that Darbarilal was missing from 1966. Had Darbarilal been alive and visited Kumher after 1966, his brothers and relatives would have certainly met him. However, there is no evidence is available on record so as to conclusively prove that Darbai Lal was seen at any point of time after 1966. In this view of the matter the presumption under law would be that Darbarilal was not alive at the time of filing of suit inasmuch as he had not been heard of for seven years. Section 108 of the Indian Evidence Act, 1872 clearly provides 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. In the instant case it was defendant Om Prakash who affirmed that Darbari Lal was alive and therefore, it was for the defendant to prove that Darbari Lal was alive at the time of filing of suit. In my considered view the defendant has not been able to discharge this burden. 16. The learned trial Court after elaborate evaluation of evidence adduced by the parties and having found the evidence adduced on behalf of defendants being inconsistent, has come a conclusion that Darbari Lal was - missing 7 years prior to the filing of the suit and therefore under the provisions of Section 108 of the Evidence Act it would be presumed that Darbarilal was dead at the time when suit was filed and hence there was no question of he being impleaded as a party to the suit. 17. 17. It is important to note that on 16.10.2006 this Court, keeping in view the categorical stand of the defendants that Darbarilal was alive till 1966 or even thereafter, passed the following. order : "Learned counsel for the appellant Ved Prakash is directed to produce the death certificate of Darbari Lal as the controversy in the present case can be resolved by ascertaining the date of death of said Darbari Lal who is said to be missing ever since 23.10.1966 vide Ex.9 letter of Ved Prakash. If the said person Darbari Lal is known to have expired after filing of the suit, there is no justification of drawing the presumption of death of said Darbari Lal in absence of 7 years of his unknown whereabouts. Since the defendant appellant has come with the case that the said person was alive till 1966 or even thereafter, he should be in a position to produce the death certificate of said person Darbari Lal who is his uncle. If no such information is furnished by the next date of hearing, the appeal will be heard on its merit drawing the presumption of death of said person Darbari Lal which may possibility justify decree of 1/2 share of property in favour of plaintiff respondent. If appellant Ved Prakash fails to file such death certificate, he should file affidavit showing what efforts he made for this and reason for not being able to file such death certificate." 18. It is evident that till the final arguments were heard and judgment was reserved the counsel for the appellant neither filed death certificate of Darbari Lal nor did he file any affidavit showing what efforts he made for this and reason for not being able to file such death certificate. In this view of the matter, it must be concluded that said Darbari Lal was missing since 23.10.1966 as per letter Ex.9 of one of the defendant appellants namely Ved Prakash. The presumption under Section 108 of the Evidence Act, therefore, would be that Darbari Lal was not alive when the suit was filed in April, 1975. 19. For the reasons aforesaid, the findings arrived at by the learned trial Court being based on proper appreciation of evidence call for no interference. 20. Consequently, the appeal fails and is hereby dismissed. The presumption under Section 108 of the Evidence Act, therefore, would be that Darbari Lal was not alive when the suit was filed in April, 1975. 19. For the reasons aforesaid, the findings arrived at by the learned trial Court being based on proper appreciation of evidence call for no interference. 20. Consequently, the appeal fails and is hereby dismissed. In the facts and circumstances of the case, parties are left to bear their own costs.Appeal Dismissed. *******