KHUDIRAM MANDAL Vs. JITENDRA NATH

JUDGEMENT

(1.) These Rules raise two procedural questions of some practical importance. Both are questions under S l45, Criminal P. C.

(2.) The disputed property is a small piece of land, about half a cottah. in area, and includes a mud-built house standing thereon. It is really the northern adjunct to the ancestral homestead of one Bepin Behari Mondal and was purchased in the Bengali year 1327 by a deed executed in favour of one of his sons, named Jogesh. Jogesh pre-deceased his father, leaving a widow, named Surabala or Surendrabala. After the death of Bepin, his surviving sons, Jitendra Nath and Harendra Nath, appear to have made some kind of a partition of the homestead, Jitendra taking the northern portion and Harendra the southern. In June 1950, one Kshudiram, who is the Petitioner in these Rules, obtained a transfer of the disputed property from Surabala who obviously dealt , with it on the basis that it was a self-acquired property of her husband. Jitendra and Harendra dispute that claim and their case is that the property was really acquired by the father Bepin, though Harendra is not very definite. After his 'purchase, Kshudiram exercised certain acts of possession with the effect of dispossessing Jitendra, and Harendra who is alleged to have been aiding Kshudiram, himself did certain acts with the same effect. It was out of those doings that the present proceedings arose.

(3.) On 8th August 1950, Jitendra lodged an information at the Mangalkote Police Station to the effect that his brother Harendra was trying to shut him out from his portion of the homestead by closing down the communicating door between the two portions and that there was an apprehension of a breach of the peace. He did not mention Kshudiram, but the latter appeared during the police enquiry which followed and asserted his claim to the disputed property on the basis of his purchase. The police appear to have thought that the dispute was really one between the two brothers on one side and the stranger-purchaser on the other and they recommended initiation of a proceeding under Section 145, Criminal P. C, on that basis, as also attachment of the disputed property and an order under Section 107, Criminal P. 0., upon the two brothers. On receipt of the police report, the Sub-Divisional Officer of Katwa, Sri A. B. Eudra, drew up a proceeding under Section 145 on 30th August 1950 against Jitendra and Harendra as the First Party and Kshudiram as the Second Party. An application made by Jitendra that Harendra should be transferred to the category of the Second Party was rejected on 1st November 1950.