BHOLANATH DHAR Vs. GOUR GOPAL

JUDGEMENT

(1.) This revisional application is directed against an order of Sri S. L. Banerji, Magistrate first class, Alipore, in a proceeding under Section, 145, Cr. P. C., declaring the first party's right to the possession of the disputed ]and and forbidding disturbance of such possession by the second party. The disputed land is the eastern half of c. s. plot 113 of 'Mouza' Gangarampur, P. S. Behala Measuring .09 acre, on the Cattle Shed Road of South Suburban Municipality. C. Section Plot 113 in its entirety measuring .18 acre belonged to Pramatha Nath, Mukherji, who sold the western half by a 'kabala', on 7-3-20 to Gopal Dhar, father of Bholanath Dhar, second party-petitioner 1, and who sold the eastern half of the plot on the same day to Haripada Maity by another 'kabala'. Haripada Maity is the tenant recorded in the c. s. 'khatian' in respect of the eastern half of the plot, i. e. in respect of the disputed land. The first party Gourgopal Chakravarti purchased the disputed land on 24-9-47 by a 'kabala' in the name of his wife Suprova Debi from the heirs of Haridapada Maity who died in 1944. The case of the first party was that ever since the purchase in the name of his wife, he was in possession of the disputed land; that on the last Sunday of May 1950 (28-5-50) he was informed that the second party had made an excavation on the disputed land for making the plinth of a building and had also collected building materials on the land; and so he sent his clerk and other men to the land to protest, but the second party threatened them with violence and compelled them to leave the place. Thereupon the first party filed a petition before the Subdivisional Officer upon which the proceeding under Section 145 was started. The case of the second party was that Gopal Dhar not only purchased the western half of c. s. plot 113, but that he also purchased the eastern half thereof though in the 'benami' of Haripada Maity; that Gopal Dhar was all along in possession of the entire plot till his death when the land devolved on his son Bholanath Dhar; that Bholanath transferred 2 'kathas' of the disputed land to his wife Binodini (petitioner 4) and 4 'kathas' to his daughter Sudharani (petitioner 3) end that Sudharani had started construction of a building on the disputed land in February 1950 and not in May 1950 and that Sudharani and her husband Sushil Das (petitioner 2) were in possession of the disputed land.

(2.) On the petition filed before the S. D. O. by the first party Gourgopal Chakravarti, the S. D. O. Sri P. M. Sanyal on 31-5-50 issued an order under Section 144, Cr. P. C., on the second party directing them not to go upon the disputed land and not to proceed with the construction of the building on the land and to show cause by 15-6-50. After hearing both parties and considering the police report received in the meantime, the Section D. O. Sri F. M. Sanyal on 23-6-50 drew up proceedings under Section 145, Cr. P. C., and also attached the disputed land under Section 145 (4), Cr. P. C. On 29-8-50 written statements having been filed by both parties, Sri A. B. Mukherji transferred the case to Sri S. L. Banerji, Magistrate, first class, for disposal. Sri S. L. Banerji heard the case and passed final orders on 3-9-52 declaring the first party's right to possession in the disputed land.

(3.) Three points have been urged in support of this revisional application by the second party firstly, that Sri S. L. Banerji had no jurisdiction to try the case, the case not having been validly transferred to him; secondly, that the learned trying Magistrate dealt with the question of title and not with the question of actual possession and that, therefore, his order cannot be sustained; and thirdly that there was defect of party inasmuch as notice of the proceedings under Section 145 was not served on the ladies, viz., Sudharani and Binodini.