BAIJ NATH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS reference has been made by Sessions Judge Ballia with the recommendation that the order dated 15-5-73 passed by S. D. M. Ballia delivering possession of the subject of dispute to Deo Sagar Pande (Second Party) in proceedings under Section 145 Cr. PC be quashed.

(2.) THE subject of dispute in the case Under Section 145 Cr. PC was Chak No. 463 situate in Chandpur district Ballia. This chak was comprised of four plots bearing Nos. 866, 867, 868 and 869 measuring 2. 45 acres. It appears that there was a dispute between Baij Nath Singh (First Party) and Deo Sagar Pande (Second Party) regarding the aforesaid Chak. That dispute generated much attention and there was likelihood of breach of peace. S. O. P. S. Bairia, therefore, submitted a report in the Court of S. D. M. Ballia and prayed that action Under Section 145 Cr. PC be taken. The learned Magistrate felt satisfied that there was a dispute between the parties regarding the disputed land and that dispute was such as was likely to cause a breach of peace and he, therefore, drew up a preliminary order on 2-4-77 and also attached the subject of dispute. The parties were then called upon to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and also to produce evidence in support of their respective claims, Baij Nath Singh filed his written statement and stated that Chak No. 463 belongs to him and his co-sharers. According to him, he had always been in possession over this Chak. He denied the right and title of Deo Sagar Pande to this Chak. He also denied that he was ever in possession of it. It appears that Deo Sagar Pande did not appear in Court to contest the case and, therefore, the learned Magistrate passed ex parte orders in favour of Baij Nath Singh on 16-8-70. Deo Sagar Pande went up in revision against the ex parte order passed against him and the High Court eventually set aside that order. The case was remanded to the Magistrate for re-hearing. Deo Sagar Pande then filed his written statement and claimed to be the owner of Chak No. 463. According to him, he had purchased this Chak from its rightful owner and had always been in possession of it, since the time he purchased it. He also took up the plea that the subject of dispute had come under consolidation operations and. therefore, the case Under Section 145 Cr. PC should not proceed in respect of it. The case, however, proceeded and the Magistrate referred the matter to the Civil Court Under Section 146 Cr. PC On 3-2-73 the Munsif concerned returned his finding that Deo Sagar Pande (Second Party) was entitled to the possession of the subject of dispute. In accordance with this finding of the learned Munsif, the Magistrate passed an order delivering possession of the subject of dispute to Deo Sagar Pande. Baij Nath Singh (First Party) felt aggrieved with the order passed by the learned Magistrate and went up in revision to the Court of Session. The learned Sessions Judge came to the conclusion that the order passed by the learned Magistrate delivering possession of the disputed property to Deo Sagar Pande was bad and legally unsustainable and he has therefore, made this reference with the recommendation as aforesaid.

(3.) THE learned Sessions Judge found the order passed by the Magistrate to be bad on two counts: