1. The appellants sued on the 4th October, 1913, to recover possession of a share in Mauza Dorli from the defendants, whose fathers (since deceased) bought the share at an auction-sale held in execution of a money-decree obtained against one Must. Juga. The appellants claim as reversioners entitled to the property on Juga's death and they allege that she died on the 4th October, 1901. The defendants pleaded inter alia that Juga died two or three days before the full moon in Bhadon (30th August to 28th September, 1901), and that the suit is consequently barred by time in a later statement they gave the date as the 27th September.
2. It is common ground that the case is governed by Article 141 of the Limitation Schedule and that Juga died either on the 4th October, 1901 or within the previous week.
3. The Kotwar reported at the Lanji station-house, eight miles away, on the 4th October, 1901 that she was dead. The Trial Judge laid on the plaintiffs the burden of proving the date of death and finding the witnesses on both sides to be unreliable, held the onus not to have been discharged. In appeal from the decree dismissing the suit the District Judge found Friday, the 27th September, 1901, to be the date of Juga's death.
4. The plaintiffs' learned Counsel contends here on their behalf that since Juga's death was not reported till the 4th October, she should be presumed to have lived till that day. It is said that there is a presumption in favour of continuance of life and that the onus of proving death is on the person who asserts it; also that the evidence of the defendants does not satisfactorily establish the 27th September to have been the day of death.
5. In my opinion there is no presumption in favour of the plaintiffs. It is certain that Juga died between the 26th September and the 4th October, 1901, so that the rule in Section 107 of the Indian Evidence Act, has no application, there being no question whether Juga was alive or dead at the date of the suit. Section 1(e), O. 7, 1st Schedule of the CPC, requires the plaint to state when the cause of action arose, and in an action of ejectment it is for the plaintiff to prove a title subsisting at the date of his suit: on this point the law is clear, as appears from the judgments of the Judicial Committee of the Privy Council in Mylapore Iyasawmy Vyapoory Moodliar v. Yeo Kay (1887) 14 Cal. 801 , 14 I.A 168 (P.C) and Basant Singh v. Mahabir Pershad (1913) 35 All. 273 , 16 O.C 136 , 19 I.C 340 , 40 I.A 86 (P.C). This position was recognised as settled in Baliram v. Sitia (1910) 6 N.L.R 160 , 8 I.C 1123. There is also express authority for the view that when the question is not merely one of death but of death at a particular time, there is no presumption as to the time but the party concerned, to make out death on a specified date, must prove it by evidence: see Venkata Hanumanulu Garu v. Lachchamma (1904) 14 M.L.J 464 and Jayawant Jivanrao Deshpande v. Ramchandra Narayan Joshi A.I.R (1916) Bom. 300 , 33 I.C 484 , 40 Bom. 239. In the case last cited it is shown that the rule is the same in English Law, the leading authority on the point being Nepean v. Doe d. Knight (1837) 2 M. & W. 894.
6. In the present case we know that the Kotwar of Juga's village reported births and deaths weekly on Friday at the Lanji Police Station. What he reported on the 4th October, 1901 would include occurrences of the period which had elapsed since his last previous report, i.e, seven days. Assuming that he would not omit a death which to his knowledge took place on the very day of his report before his departure from home, it is still manifest that of all the possible eight days which may have been covered by his report, the last is prima facie one more likely than any of the other seven to be the true one: the odds in fact are seven to one against the appellants' date being correct, if the matter is looked at merely from the point of view of probability. Moreover, before the District Judge the parties appear to have agreed that the death occurred either on Friday the 27th September or on Friday the 4th October, and there is evidence proper for consideration which the lower Appellate Court believed that the earlier is the right date. The evidence on both sides having been weighed by the lower Appellate Court, the question of burden possesses little real importance, nor has any ground been shown on which this Court could properly decline to accept the finding on what is a question of fact.
7. The appeal fails and is dismissed with costs. In the Courts below costs will be paid as already ordered.
P.N/R.K
8. Appeal dismissed.