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High Court Form No. (J) 2.
Heading of Judgment in Original Suit
District : MORIGAON.
IN THE COURT OF MUNSIFF NO.1, MORIGAON.
Present : N.C.BHUYAN, AJS.
Wednesday, the 22th day of October, 2014.
TITLE SUIT NO. 73/2013
….Plaintiffs.
Malin Bora
-vsAnanda Bora & ORS
....Defendants.
This suit coming on for final hearing on 25/09/2014 in the presence of:-
N.K.Borah
Advocate for the plaintiff.
None for the defendant.
And having stood for consideration to this day, the Court delivered the
following judgment:-
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JUDGMENT
1. This suit for declaration of the civilly dead of Mithu Bora, s/o Juri
Mahanta Bora.
2. That the plaintiff is the son of Late Dina Kanta Bora. He died about 30
years back. At the time of his death he left following heirs namely sons i)
Ananda Bora, ii) Plaintiff Malin Bora, iii) Lohit Bora since deceased, iv)
Suneswar Borah since deceased, daughters v) Subheswari Bora, vi)
Bimala Tamuli, vii) Sarumati Bora since deceased Smti. Bhanti Bora.
Lohit Bora died in the year 1998 leaving Tankeswari Bora as his wife
and Sri Rupam Bora as his son. Suneswar Bora died in the year 2000,
leaving his wife Juri Mahanta Bora and minor son Mithu Borah.
3. That, Suneswar Bora, was a teacher of Lelaibori M.E. School as assistant
teacher. He usually resided at village Borghung within the Morigaon
district with his family member comprising his wife Juri Mahanta Bora
and his son Mithu Bora. After his death Juri Mahanta Bora with the post
Service Benefit of her husband acquired the landed property described in
schedule A of the plaint and possesses the same. Juri Mahanta Bora was
a house wife of Suneswar Bora since deceased.
4. That, Juri Mahanta, Bora probably due to frustration committed suicide
on dated 27.03.2006 by drowning along with her baby in the river Kapili
at Jagi Bhakatgaon. The fact of her committing suicide came to the
knowledge of the plaintiff and others members on dated 29.03.2006. The
incident took place in the manner stated below. On dated 27.03.2006 Juri
Mahanta Bora went to her mother house at Gasbari village in Morigaon
district for temporary visit. From there she started construction of a
house at Professor Colony at Sunarigaon in Morigaon district. On
17.03.2006, she came to the house of the plaintiff for cordial visit and
went back on the same day to her mother house at Gasbari village. On
27.03.2006 the plaintiff was informed by two persons of Gasbari village
that Juri Mahanta Bora and her son Mithu Bora are missing.
5. The plaintiff then made enquiry but could not make out any trace of the
missing above persons. The plaintiff then on dated 28.03.2006 lodges an
ejahar before the Morigaon Police Station informing about the missing
of Juri Mahanta Bora and Mithu Bora. On 29.03.2006 the dead body of
Juri Mahanta Bora was found on the river Kapili nearby Jagi-
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Bhakatgaon. But the dead body of Mithu Bora could not found. The dead
body was thereafter handed over the plaintiff after conduct due post
mortem and the plaintiff then obtained a death certificate in respect of
said deceased.
6. That when on dated 29.03.2006 the dead body was found on the river
Kapili at Koloi village and then one of the brother of Juri Mahanta Bora
on dated 29.03.2006 informed the O/C, Jagiroad by filing an F.I.R. and
thereafter the police of Jagiroad P.S. recovered the dead body and
identified the same. And on the strength of the F.I.R., the Jagiroad P.S.
was pleased to register the same as U/D Case No.07/2006 and the I/O of
the case submitted the entire report that Juri Mahanta Bora committed
suicide after receipt of P.M. report. Though more than 7 years has
elapsed about the missing of Mithu Bora his whereabouts are not known
to anybody who are supposed to know or heard about him if he had been
alive. So he is taken to be the civilly dead U/S-108 of the Evidence Act.
7. That he left the plaintiff and other defendants as his uncle/aunty. In order
to mutate the names of said heirs with respect to the landed property left
by her and the son a declaration about the civilly dead of Mithu Bora is
required. So the instant suit.
8. On perusal of the case record it is found that vide order dated 17/12/13
my learned predecessor declared that instant suit shall proceed ex parte
against Defendant no. 1 to Defendant no.7 as they were absent after
summons issued to them were served properly on 5/12/13. Again vide
order dated 17/01/14 my learned predecessor declared that instant suit
shall proceed ex parte against Defendant no. 8 as he was absent after
summons issued to him was served properly.
9. As no written statement was submitted, the following points for
determinations are taken for discussion:
1) Whether Mithu Bora s/o Suneswar Bora is civilly dead?
2) Whether the plaintiff is entitled to get the decree as prayed for?
10.During trial, plaintiff side examined 3 witnesses. I have also perused the
documents exhibited in the suit.
I have heard oral arguments of Ld. Advocate for plaintiff side.
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DISCUSSION, DECISION AND REASONS THEREOF :
11.So far as the first point for determination is concerned, it is found that
the plaintiff has submitted the evidence in chief of three PWs. PW1 is
Malin Bora, PW2 Dulal Bora and PW3 Jadu Koch. All the three PWs
depose that on 29/03/2006 Juri Mahanta Bora committed suicide on
dated 27.03.2006 by drowning along with her baby in the river Kapili at
Jagi Bhakatgaon. The fact of her committing suicide came to the
knowledge of the plaintiff and others members on dated 29.03.2006.
12.That on 27.03.2006 Juri Mahanta Bora went to her mother house at
Gasbari village in Morigaon district for temporary visit. From there she
started construction of a house at Professor Colony at Sunarigaon in
Morigaon district. On 17.03.2006, she came to the house of the plaintiff
for cordial visit and went back on the same day to her mother house at
Gasbari village. On 27.03.2006 the plaintiff was informed by two
persons of Gasbari village that Juri Mahanta Bora and her son Mithu
Bora are missing. The plaintiff then made enquiry but could not make
out any trace of the missing above persons.
13. The plaintiff then on dated 28.03.2006 lodges an ejahar before the
Morigaon Police Station informing about the missing of Juri Mahanta
Bora and Mithu Bora. On 29.03.2006 the dead body of Juri Mahanta
Bora was found on the river Kapili nearby Jagi- Bhakatgaon. But the
dead body of Mithu Bora could not found.
14.The plaintiff has also exhibited the certified copy of the case record of
Jagiroad P.S. case no. 07/06 in connection with the death of Juri
Mahanta Bora. I have perused the same.
15.Section 108 0f the Indian Evidence Act lays down as follows:
108. Burden of proving that person is alive who has not been heard of for
seven years.-Provided 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.
16.In the case in hand all the three PWs depose that though more than 7
years has elapsed as to the missing of Mithu Bora his where about is not
known to anybody who are supposed to know or hear about him if he
had been alive.
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17.Moreover the PWs depose that the plaintiff is the son of Late Dina Kanta
Bora, who died about 30 years back. At the time of his death he left
following heirs namely sons i) Ananda Bora, ii) Plaintiff Malin Bora, iii)
Lohit Bora since deceased, iv) Suneswar Borah since deceased,
daughters v) Subheswari Bora, vi) Bimala Tamuli, vii) Sarumati Bora
since deceased Smti. Bhanti Bora. Lohit Bora died in the year 1998
leaving Tankeswari Bora as his wife and Sri Rupam Bora as his son.
Suneswar Bora died in the year 2000, leaving his wife Juri Mahanta Bora
and minor son Mithu Borah.
18.On perusal of the Plaint, it is found that the plaintiff made party all the
legal heirs of Dina Kanta Bora, who are claimed as the heirs with respect
to a plot of land measuring 2 katha 1 lessa out of 1 bigha 3 kathas 10
lessas covered by dag no. 01 PP no. 308 at Barigaon kissam under Niz
tetelia Mouza in the district of Morigaon (Assam) left by Juri Mahanta
Bora and her son and same is deposed by all the three PWs in their
affidavit. Moreover none of the legal heirs of Lt. Dina Kanta Bora
contested the suit by any means.
19.In “Ramrati Kuer V Dwarka Prasad” [AIR 1967 SC 1134], Hon’ble
Supreme Court held that if a person has not been heard of for seven
years, there is presumption of law that he is dead. In the instant case
PW1 is the paternal uncle of Mithu Borah, PW2 and PW3 are the
permanent residents of the locality of the plaintiff, who have stated on
auth that they have not heard about Mithu Borah for more than 7 years.
20. Hence there is nothing on the record to disbelieve the case of the
plaintiff.
I have also perused the documents exhibited by the plaintiff.
Accordingly first the point for determination is decided in positive in
favour of the plaintiff.
21. So far as the second point for determination is concerned, in view of
the discussions made above and the decisions reached in the first point,
it is held that the plaintiff is entitled to the reliefs as he claimed for.
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ORDER
22. Plaintiff’s suit is decreed ex parte.
23. Prepare the decree accordingly within 15 days from today.
Given under my hand and seal of this Court on this the 22 th day of
October, 2014.
MunsiffNo.1
Morigaon, Assam.