Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment SC SU 486-2020
MHCC010010922020 Presented on : 20.01.2020
Registered on : 11.02.2020
Decided on : 14.11.2024
Duration : 04 Y : 09 M : 03 D
EXHIBIT- 25.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. OF 486 OF 2020
1. Mr. Manohar Manglya Pagdhare,
Age : 61 years, Occ. : Service,
s/o late Mr. Manglya Narayan Pagdhare,
Residing at 4th Floor, Mahim Fisherman Colony,
S. L. Raheja Road, in front of Ram Mandir,
Mahim H.O. Mahim, Mumbai- 400 016.
Mobile No. 9619855396.
Also residing at
Mahim Machimar Nagar, Building No.20,
Room No. 993, Mahim Fisherman Colony,
Mahim West, Mumbai- 400 016.
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…..Plaintiff No.1
2. Mr. Rohit Manglya Pagdhare,
Aged : 52 years, Occu : Retired,
R/at Mahim Machimar Nagar, Building No. 20,
Room No. 993, Mahim Fisherman Colony,
Mahim West, Mumbai- 400 016.
Mobile No. 9029935152.
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Deleted since
deceased as per
order in Ch/s
2021-23 dtd
04.01.24
...Plaintiff No.2
2A. Sushma Rohit Pagdhare,
Aged : 57 years, Occu : Housewife,
R/at : 993/20/A, Machimar Nagar, Causeway
Road, St. Xaviour College, Mahim, Mumbai,
Maharashtra 400 016.
2B. Dipesh Rohit Pagdhare,
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Aged : 34 years,
R/at : 993/20/A, Machimar Nagar, Causeway
Road, St. Xaviour College, Mahim, Mumbai,
Maharashtra 400 016.
2C. Pragati Vaibhav Akre,
Aged : 32 years,
R/at : Post Dandi, Morepada, Boiser West,
Taluka Palghar, Dandi, Boiser, Thane 401 501.
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3. Ms. Hirubai Manglya Pagdhare,
Aged 57 years, Occu : Housewife,
R/at Mahim Machimar Nagar, Building No. 20,
Room No. 993, Mahim Fisherman Colony,
Mahim West, Mumbai- 400 016.
Mobile No. 8779550385.
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Versus
1. The State of Maharashtra
Through Mahim Police Station
2. Municipal Corporation of Greater Mumbai
The Assistant Municipal Commissioner
‘G’ North, Dadar Plaza Theater,
Dadar West, Mumbai- 400 028.
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Appearance :
Learned Adv. Aishwarya Raje for the plaintiff.
Learned Adv. Mr. Amit Kapse for defendant No.1/State.
Learned Adv. Mr. Rahul Rathod for defendant No. 2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.09)
DATE : 14th NOVEMBER, 2024
JUDGMENT
(delivered on 14th November, 2024)
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1. This suit is instituted for declaration of death and for
issuance of death certificate of missing person under the provisions of
Section 108 of the Indian Evidence Act.
2. The facts of the case can be stated as under :
The plaintiff is a younger brother of the missing person namely Mr.
Hareshwar/Harechand Manglya Pagdhare and residing at Mahim
Machimar Nagar, Building No.20, Room No. 993, Mahim Fisherman
Colony, Mahim West, Mumbai 400 016. His elder brother turned missing
from Mahim, Mumbai. The plaintiff took the search of his elder brother
but he could not trace his whereabouts. Finally, he approached to the
police. Police station, Mahim registered the missing complaint and tried
to search the missing person. Plaintiff No.1 finally lodged complaint cum
notice on 10.09.2019 that his brother is missing. The plaintiffs want the
death certificate of missing person for administrative purposes. They left
with no alternative but to file suit for declaration and issuance of death
certificate. The plaintiffs prayed for the same.
3. After institution of the suit, the suit summons came to be
issued to the defendants. The defendants appeared in response to the suit
summons. The defendant No.1 filed the written statement and contended
that suit is bad for want of statutory notice under Section 80 of the C.P.C.
The missing person turned missing from Mahim, Mumbai from last 25
years. The police tried to search at their level best but could not trace her.
The suit is misconceived and not maintainable. It does not reveal any
cause of action. The suit is liable to be dismissed.
4. In view of rival contentions of the suitor, I framed issues vide
Exh.06 and replied the said issues which are described below alongwith
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reasons for findings as mentioned hereinafter.
Sr. no. Issues Findings
1. Whether the plaintiffs are entitled to a
decree for declaration for death of Mr.
Hareshwar Mangalya Pagdhare as per
Section 108 of the Indian Evidence Act ?
In the affirmative.
2. Whether the plaintiffs are entitled for a
Death Certificate of Mr. Hareshwar
Mangalya Pagdhare to be issued by B.M.C.
?
In the affirmative.
3. Whether the plaintiffs are entitled for the
relief of declaration as prayed ?
In the affirmative.
4. What order and decree ? As per final order.
REASONS
5. This suit is instituted by plaintiffs, therefore, burden of proof
under Section 101 of Indian Evidence Act lies upon the plaintiffs and in
order to discharge the said burden, the plaintiffs examined three
witnesses including plaintiff No.1 and relied upon the following
documents viz., Death Certificate of plaintiff No.2 (Exh.09), Original
Death Certificates of the plaintiff’s parents (Exh.16 Colly.), Original copy
of the electricity bill bearing No. 674-193-039*2 (Exh.11), Original
ration card of plaintiff No.1 (Exh.12), Original society maintenance
receipt issued by Mahim Macchimar Nagar Building No.20 Co-Op HSG
(Exh.13 Colly), Office copies of the police complaint filed by plaintiff
with Mahim Police Station and MCGM Departments (Exh.14 Colly).
News paper publication in Marathi news paper (Aapla Mahanagar) at
Exh.16, News paper publication in English news paper (Active times) at
Exh.17, Adv. for plaintiff and defendant No.2/BMC filed joint pursis for
closing the evidence at Exh.18, Adv. for defendant No.1 filed evidence
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close pursis at Exh.19. The plaintiff filed evidence close pursis vide
Exh.24. The case ended with the argument of plaintiffs as well as
defendants.
6. As stated earlier/above the plaintiffs have examined three
witnesses. PW-01 is plaintiff No.1 who deposed vide Exh.07. He deposed
that he is a resident of Mahim Machimar Nagar, Building No.20, Room
No. 993, Mahim Fisherman Colony, Mahim West, Mumbai 400 016. He
is having right in respect of Room No. 993. Earlier the said room was
owned by his father and mother. After the death of his parents, he
himself and his brothers and sisters became the owner of the said room.
He was having one brother by name Mr. Hareshwar/Harechand Manglya
Pagdhare who turned missing in the year 1974. He was a minor at that
time. Nobody could trace whereabouts of his elder brother. The police
report and information to BMC was given but no result arose. Till today
his brother is missing. He is not known by the family members or others
who would have naturally heard of him. The plaintiffs require the death
declaration for the mutation purposes. They left with no alternative but
to knock the doors of the Court. Therefore, they filed this suit.
7. PW 02 is resident of the same area and deposed that he
knows PW 01 and his brother is missing from last 25 years. Missing
person never visited or communicated with his family. The plaintiff/ PW
01 tried to take search but no result arose. He has issued one
letter/certificate wherein it is stated that on the basis of the letter issued
by the plaintiff that his brother Hareshwar is missing.
8. PW 3 deposed vide Exh.23 on the same lines. Witnesses
came to be cross examined wherein PW 01 deposed that missing person
was his elder brother and residing in Macchimar Colony, Mahim,
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Mumbai. His parents filed missing complaint. Death Certificate of missing
person is required for transferring the property. The missing person was
unmarried. PW 02 during his cross examination deposed that he knows
PW 01 from 27 years personally and unaware about the missing person.
The plaintiff reported the incident to police and police took search of his
brother same is the evidence of PW 3 during cross examination. There is
no evidence from the defendants side.
9. The plaintiff has instituted this suit for issuance of death
declaration. The evidence of plaintiffs side shows that PW 01 was having
elder brother by name Mr. Hareshwar/Harechand Manglya Pagdhare
who is missing from 1974. It is also apparent that nobody knows
whereabouts of missing person. The matter was reported to the police in
the year 2019. The notice was also issued to BMC. The police could not
search the missing person. The available evidence on record clearly
shows the fact that PW 01 was having elder brother who is missing now
and nobody knows whereabouts of elder brother of plaintiff/PW 01. It is
also apparent that he is missing from from 25-30 years.
10. During the term of arguments, counsel for plaintiffs
submitted that the plaintiffs have filed this suit under Section 108 of
Indian Evidence Act. Under Indian Evidence Act vide Section 108,
whenever the question arises whether the man is alive or dead and it is
proved that he is not being heard of for 7 years by those who naturally
have heard of him if he had been alive, the burden of proving that he is
alive is shifted to person who affirms it. The plaintiff has proved that
missing person is not heard for 7 years or more than that. The burden
shifts on the defence to prove that the missing person is alive. The
defendants could not answer this question and there is no material
showing that missing person is alive. There is no any contention on
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behalf of the defendants.
11. The perusal of the case papers clearly shows that there is
evidence regarding missing status of elder brother of plaintiff. There is no
contra material by defendants’ side. It has been shown that the elder
brother of plaintiff is missing and nobody have heard about him for 7
years. In such circumstances, burden lies on the defendants to prove that
missing person is alive. The defendants miserably failed to prove that the
missing person is alive therefore, the claim of the plaintiff would go on.
12. In this case the plaintiff is seeking declaration that his elder
brother be declared dead under Section 108 of Indian Evidence Act and
death certificate be issued by BMC. The evidence and circumstances of
the case show that elder brother of plaintiff is missing and nobody have
heard about him for 7 years or more. The plaintiff is entitled to the
declaration as prayed by him. The plaintiff has issued the notice to the
BMC prior to institution of the suit. No notice is required if act of public
servant is not challenged. The plaintiff is entitled to the death certificate
under Section 108 of Indian Evidence Act. In view of above said reasons,
my answer to issue Nos. 1 to 3 are in affirmative. Finally, I am inclined
to pass following order resulting in grant of declaration and issuance of
death certificate. Hence, I am inclined to pass the following order :
ORDER
1. The suit No. 486 of 2020 is hereby decreed.
2. It is hereby declared that the elder brother of plaintiff by name Mr.
Hareshwar/Harechand Manglya Pagdhare is dead (Civil death)
under the provisions of 108 of Indian Evidence Act.
3. The death certificate of elder brother of plaintiff by name Mr.
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Hareshwar/Harechand Manglya Pagdhare be issued under
Section 108 of Indian Evidence Act (under presumption of Civil
Death).
4. No any order as to costs.
5. The decree be drawn up accordingly.
-S/d
(V. S. KHOT)
Judge,
Place : Mumbai. City Civil Court,
Date: 14.11.2024 Gr. Bombay.
Dictated on : 14.11.2024
Transcribed on : 18.11.2024
Signed on : 21.11.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.11.2024 At 11.45 A.M. Mrs. Poonam Pawar
UPLOAD DATE AND TIME Stenographer, Grade-III
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
14.11.2024
Judgment/Order signed by P.O. on 21.11.2024
Judgment/Order uploaded on 22.11.2024
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