BHOLANATH Vs. RAMA SHANKER

JUDGEMENT

(1.) THIS is a revision petition by Bholanath Krishna Kant Jha, party No. 1, against the confirming order passed by the learned Additional sessions Judge, Balaghat, in criminal revision No. 53 of 1967 whereby the learned Judge has held that the order passed by the learned Sub-Divisional magistrate, Waraseoni, placing the non-applicant No. 1- Party No. 2- in possession of the land in dispute is proper.

(2.) THE facts, in brief, out of which this revision arises was that a complaint was filed by the police station officer, Rampaili, that a dispute existed between the parties regarding possession of khasra Nos. 210, 346/1, 346/2, 239/1 and 239 /2, which was likely to lead to breach of the place in the village. The contention of the party No. 1- applicant was that the lands in dispute are in his possession and the Party No. 2 threatened to dispossess him. He also said that his two brothers, Shyamsunder and Dwarkanath filed a suit for partition and an appeal against the preliminary decree passed by the Courts below is pending in the High Court. The High Court passed a stay order that till the decision of the appeal, final decree for partition be not passed. The party no. 2-Non-applicant No. 1 - contested the claim of Party No. 1 on the ground that there was a partition in the family and 11. 43 acres of land was given in possession of Dwarkanath as a result of that partition and he transferred the same to Ramashankar Mishra, who was the uncle of the Party No. 2. It was also said that for the last 15 years the possession of the suit lands is with the party No. 2. It was further said that the Party No. 1 had filed a civil suit no. 16-A of 1962 for permanent injunction restraining the party No. 2 from disturbing his possession in enjoyment of the lands in khasra No 346 /2 which was, though decreed by the trial Court, was set aside by the First Appellate court on 5th October, 1966. It was also pleaded that the Party No. 2 had, by a registered sale deed, purchased the other lands in dispute and is in its possession since 31-5-1966.

(3.) THE Party No. 2 filed, in support of his claim, affidavits and other documentary evidence but the Party No. 1 did not file any, and the learned sub-Divisional Magistrate came to the conclusion that the party No. 2 was in possession of the disputed lands within two months of the preliminary order passed by him under section 145 of the Code of Criminal Procedure and, therefore, he ordered accordingly.