MAHENDRA DAS Vs. MADHU RAM BORO

JUDGEMENT

(1.) HEARD Mr. D. Choudhury, learned counsel for the petitioner. After hearing the counsel at length I decide to dispose of the matter at the motion stage. The petitioners as plaintiff filed a Title sit being TS No.6/1990 in the court of Munsiff, Tihu against the defendant for declaration of right, title and interest as occupancy tenant over the suit land. Along with this Title suit an injunction petition was filed and accordingly notice was issued to the defendants. Defendant No. 1 being the necessary and important party required notice was issued to him but it was returned with report of the Jarikarak that defendant No.1 died. This was disputed by the plaintiff and accordingly he prayed before the court for sufficient enquiry. The trial court on the basis of that prayer made an enquiry, took the evidence of the Jarikarak and the Gaonburah of the concerned village and gave his decision. This finding is challenged in this revision petition as the evidence on record shows that some of the witnesses reported the Jarikarak that the defendant No. 1 is alive and he is residing at village No. 3 Gereki under Boginadi Police Station of Lakhimpur district. Accordingly, a police report was called for on the basis of an application filed by the petitioner before the Munsiff. In that application the prayer was to call for the records of Misc. Case No.l86(M)/87 from the file of the Executive Magistrate, Nalbari wherein a police report was there that one Gooneswar, the Sarkari Gaon Burah of village Gereki No.3 under Lakhimpur district stated that the defendant No.1 was staying with his wife at the said village under the said police station. On perusal of the report the learned Munsiff asked the plaintiffs to take steps to bring a report from the officer in charge, Boginadi Police Station through Superintendent of Police, Lakhimpur. One ASI of the said Police Station made an enquiry and reported the Superintendent of Police that he met Gaonburah Shri Guneswar Gogoi who informed him that defendant No. 1 Madhu Boro and his wife were ploughmen under one Suben Chankran and it was learnt that they are alive and serving as ploughmen under said Suben Chankran. Inspite of this police report the learned Muasiff has taken a different view and passed the impugned order. From the facts and circumstances it appears that learned Munsiff did not apply his mind and in that view of the matter the learned Munsiff is directed to decide the matter afresh and take necessary steps under the provisions of law. This shall be done within one month from receipt of this order. With the above direction the petition is disposed of.