GANGA BUX SINGH Vs. SUKHDIN

JUDGEMENT

(1.) On 8-8-1955, Sukh Din made an application under Section 145, Code of Criminal Procedure to the Sub-Divisional Magistrate, Salon, district Rae Bareli claiming to be Sirdar of plot No. 369/2 in village Ahal, Police station Salon as heir of his deceased brother; Bhagwan Din. He alleged that Ganga Baksh Singh, the opposite party, who was previously the zamindar, had taken forcible possession of the plot on or about 24-7-1955.

(2.) The Sub-Divisional Magistrate asked the Police for a report by 23-8-1955 as to the existence of an apprehension of a breach of the peace. The police report was not received on that date and was awaited for till 12-9-1955. Actually the police submitted a report on 31-8-1955 and this was received by the Magistrate on 8-9-1955 but for some unexplained reason, it was not put up before the learned Magistrate on 12-9-1955 and no preliminary order under Section 145(1) of the Code of Criminal Procedure was passed till 14-10-1955. The land in question was attached on 18-11-1955.

(3.) After completing his enquiry the learned Magistrate by his order dated 24-4-1956 held that Sukh Din was in possession all along. He released the attached crop in favour of Sukh Din and forbade Ganga Baksh Singh from interfering with Sukh Din's possession. Thereupon Ganga Baksh Singh filed a revision before the Sessions Judge. This was heard by the learned Additional Sessions Judge who held that Sukh Din had been, on his own admission, out of possession for more than two months on the date of the Magistrate's preliminary order and as such he could not under the proviso to Sub-section 4 of Section 145, Cr. P. C. be deemed to have been in possession on the date of that order. The learned Additional Sessions Judge has accordingly referred the matter to this Court and recommended that the order passed by the learned Magistrate on 24-4-1956 be set aside and Ganga Baksh Singh be declared to be in possession and be restored to possession.