HARI LAXMAN PATIL Vs. YADAV LAXMAN PATIL

JUDGEMENT

(1.) This is a reference made by the Additional District Magistrate, Dhulia recommending that the order passed by the Sub-Divisional Magistrate, Nandurbar in section 145 Cri.P.C. proceedings should be quashed. The subject-matter of the dispute is S.No. 33/1 admeasuring 11 acres 23 gunthas of village Lambole in Dhulia district. This land was held by one Laxman Dala Patil and after his death the names of his three sons and wife were entered as heirs of deceased Laxman in the Kabjedar column of 7 X 12 extracts. There were some quarrels between these three brothers and one Dattu, step brother. 7 X 12 extract, which is on record for the years 1972-73 shows that this land was encumbered and divided into three shares. The first share of 5 annas-4 pies is in the name of Dattu, Hari and Yadav. Hari is Party No. 2 and Yadav is Party No. 1. Evidently, therefore, one-third share in the land belongs to each of the three parties. The other one-third is shown to be in possession of four others and the remaining one-third is the share of wife Kashibai of Laxman. The dispute is only with respect to a small piece of land in S. N. 33/1 admeasuring about 2 acres 11 gunthas. Party No. 1. says that he is in possession of the same and Party No. 2 says that he is in possession of the same. When the dispute went to the Sub-Divisional Magistrate, he decided that Party No. 1 is in possession of the same and, therefore, he is entitled to possession. This order was challenged and the learned Additional District Magistrate held a contrary view and, therefore, he has referred this matter to this Court.

(2.) I do not think the reference can be accepted because each of the parties appears to be in possession of their respective shares and the complaint of Party No. 1 is that Party No. 2 is trying to grab his share. From the record of right extracts of the year 1972-73 with which we are here concerned, it is clear that Dattu Laxman, Party No. 1 and Party No. 2 should all be in possession of one-third of the land S.No. 33/1. It may be therefore that one-third of one-third may be in possession of each of the parties. I do not, therefore, think that there is any evidence to show that Party No. 2 is in possession of the entire land, The record of right extracts do not show so. In that view of the matter, therefore, I think the reference cannot be accepted.

(3.) I, therefore, confirm the order of the Sub-Divisional Magistrate, Nandurbar Division, dated 26-8-1973 and reject this reference. Rule discharged.