JUDGMENT 1. This second appeal has been filed at the instance of defendants whose appeal has been dismissed as abated. 2. On 29.8.2008, this appeal was admitted on the following substantial question of law: "Whether the Com1 below erred in rejecting the application filed by the appellants for their substitution in place of late Shiv Prasad Singh, while Shiv Prasad Singh was missing person and only after a declaration of his civil death, appellants were entitled to be substituted in his place?" 3. Shri Pandey, learned counsel for the plaintiff/respondent No.1 submits that necessary application to bring the LRs on record was not moved within time by the defendant /appellants, therefore, the appeal has been rightly dismissed as abated. 4. I have gone through the impugned order passed by the learned First Appellate Court dismissing the appeal as abated. 5. Having heard learned counsel for respondent No. l / plaintiff I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of law. 6. On bare perusal of the findings of the learned First Appellate Court, para , 9, this Court finds that a presumption was drawn by the learned First Appellate Court holding the civil death of appellant Shiv Prasad Singh Gaud. 7. An application LA No.2 was filed under Order 22 Rule 1 and 3 read with section 151 CPC by the LRs of deceased appellant Shiv Prasad Singh Gaud before the learned District Judge, Sidhi. In the application, it has been stated that appellant Shiv Prasad Singh Gaud went for the pilgrimage "Vaishno Devi' on 22.5.1993 in the State of Jammu and Kashmir but he did not return back to his Village. In the application, it is also mentioned that after hearing the appeal, the passing of judgment was deferred up to 23.5.2000. The application could not be moved in between 12.5.2000 to 18.6.2000 since it was Summer Vacation and the application was moved on 19.6.2000. 8. According to section 108 of the Evidence Act, when the question is whether a man is alive or dead and it is to be proved that he has not been heard for seven years by those who would naturally have heard him if he had been alive, the burden of proving that he is alive is shifted on the person who affirms it. On bare perusal of the application, it is gathered that deceased appellant Shiv Prasad Singh Gaud had gone for pilgrimage on 22.5.1993 and was not heard for seven years and hence it should be presumed that he had occurred a civil death 7 years w.e.f. 22.5.1993. The crucial date would be 21.5.2000 when the seven years which is the prescribed period of limitation would expire. Since on this date, summer vacation was going on which continued up to 18.6.2000 and on opening day of the summer vacation, application under Order 22 Rule 3 CPC was filed by the appellants to bring the LRs of deceased appellant Shiv Prasad Singh Gaud on record, I am of the view that the same should have been allowed by the learned First Appellate Court by holding that the civil death of deceased appellant occurred on 21.5.2000 and the application for substitution of LRs' has been filed within 90 days w.e.f. 21.5.2000, hence it is not barred by time and the appeal should not have been dismissed as abated. 9. This substantial question of law is accordingly answered in favour of the appellants and it is hereby held that since the civil death of deceased Shiv Prasad Singh Gaud who was sole appellant before the learned First Appellate Court occurred on 21.5.2000, the application for substitution which was moved on the opening day of the Summer Vacation, i.e., 19.6.2000, the same is within limitation since it was filed within 90 days of the civil death and therefore, the appeal does not abate. 10. Resultantly, this appeal succeeds and is hereby allowed. The impugned order of the learned First Appellate Court dismissing the appeal as abated is hereby set aside and the application filed by the appellants under Order 22 Rule 3 CPC is hereby allowed and they are permitted to be brought on record as appellants before the learned First Appellate Court. The learned First Appellate Court is hereby directed to decide the appeal on its own merit as early as possible preferably within a period of six months from the date of receipt of the judgment passed in this appeal. 11. Registry is hereby directed to send the record posthaste so as to reach the learned First Appellate Court on or before 16th May, 2011. 11. Registry is hereby directed to send the record posthaste so as to reach the learned First Appellate Court on or before 16th May, 2011. The parties shall remain present on 16.5.2011 before learned First Appellate Court and no fresh notice shall be issued to them.