MUNNA Vs. JHINGUR

JUDGEMENT

(1.) This reference has been made by the learned Second Additional Sessions Judge, Varanasi, and arises out of proceedings under Sec. 145, Crimial P.C.

(2.) The facts of the case are that the relations of the applicant, Munna, with Jhingur, opposite party, had been strained for some time as there was a dispute between them regarding a plot of land in which Bela flowers were grown. Jhingur had filed a suit against Munna for declaration and partition (suit No. 480 of 1950) in the court of the learned Judicial Officer, Varanasi, in respect of the plot in dispute and obtained an ex-parte decree on April 17, 1965. Thereafter, on April 29, 1965 Jhingur obtained Dakhal Dihani of the plot in dispute. Against the ex-parte decree. Munna applicant, preferred an appeal which was allowed by the learned Additional Commissioner, who set aside the ex-parte decree which had been passed in favour of Jhingur and remanded the case to the Judicial Officer for fresh decision. In the meantime Munna made an application for restitution of possession of the plot under Sec. 144 C.P.C. Jhingur, on the other hand, filed an appeal against the judgment and decree of the learned Additional Commissioner before the Board of Revenue and the Board of Revenue stayed delivery of possession. Ultimately Jhingur's anneal was dismissed by the Board of Revenue which maintained the Additional Commissioner's order setting aside the ex-parte decree passed by the Judicial Officer in favour of Jhingur. On May 30, 1966 Munna obtained possession of the plot in dispute under Sec. 144 C.P.C. after Jhingur's appeal had been dismissed by the Board of Revenue. After Munna had obtained possession under Sec. 144 C.P.C. Jhingur preferred an objection on June 23, 1966 before the Judicial Officer. His objection was dismissed by the Judicial Officer and then Jhingur preferred an appeal before the Additional Commissioner which was also dismissed. The judgment of the Additional Commissioner was confirmed by the Board of Revenue also. Thereafter Jhingur filed an application on July 6, 1966 before the learned City Magistrate, Varanasi, praying for proceedings under Sec. 145, Crimial P.C. to betaken against Munna but his application was rejected on the ground that proceedings under Sec. 107, Crimial P.C. were pending. Against that order Jhingur preferred a revision on which the learned Additional District Magistrate (J) made a reference to this Court recommending that the order passed by the learned Magistrate be set aside. Jhingur again filed an application for initiating proceedings under Sec. 145, Crimial P.C. on April 17, 1967 and the learned Magistrate passed a preliminary order attaching the plot in dispute and asking the parties to file their written statements, affidavits and evidence in support of their respective cases. On July 29, 1967 Munna filed an application requesting that proceedings under Sec. 145. Cr. P.C., be dropped and the plot be released from attachment. In the meantime the parties had filed written statements and affidavits and the learned Magistrate referred the matter to the civil court for determining which party was in possession on the date of the preliminary order and two months prior to the same. The learned Munsif found, by his order dated Jan. 8, 1968, Jhingur to be in possession of the plot in dispute on the date of the preliminary order and two months prior to the same. Thereupon, Feb. 2, 1968 the learned Magistrate passed a final order in conformity with the finding passed by the learned Munsif and holding that Jhingur was in possession of the plot in dispute and directed release of the plot in his favour and forbade Munna to interfere with the possession of Jhingur until he was evicted under the orders of some competent court.

(3.) Against the order of the learned City Magistrate dated Feb. 2, 1968 Munna preferred a revision which was heard by the learned Second Additional Sessions Judge, Varanasi, who, by his order dated June 1, 1968, has made the present reference.