MUKUTDHARI SHAO Vs. AJODHYA SHAO

JUDGEMENT

(1.) THIS motion arises out of proceedings under Section US, Criminal P. G, There was a dispute regarding possession of certain property and proceedings under Section 14S of the said Code were taken resulting in an order passed by the learned Magistrate entertaining these proceedings to the effect that the petitioner was in possession of the property and that he should be given possession thereof. Against this order, the learned Sessions Judge was moved and he called for the records under S, 435, Criminal P. C. While doing so, he directed that the order putting the petitioner in possession should be stayed. Thereupon the pleader appearing before the learned Sessions Judge on the application sent a telegram to the officer in charge of the local thana directing him not to give possession of the property to the first party. No telegram was sent to the Magistrate. The Officer in charge took the telegram to the Magistrate and the learned Magistrate very properly said that as he had received no intimation from the Sessions Court and as he had received no telegram even from the pleader appearing for the second party he saw no reason why his order directing possession to be given to the first party should be stayed and he directed posses - sion to ba so given. The Sessions Judge was apprised of this fact and he then passed an order directing that the second party be restored to possession. Against this order this rule has been, obtained.

(2.) IN my opinion the rule must be made absolute. The learned Sessions Judge had no juris, diction whatsoever to stay the order for possession granted in favour of the first party. Still less did he have any jurisdiction later to pa3s an order restoring possession to the second party.

(3.) NEXT I would point out that the Court is given powers of stay and not powers of restoration. The finding of the Court of first inatance is that the petitioner first party was in possession at the relevant time mentioned in Section 145, Ori -minal P. C., and that his possession should be maintained by his being put in possession. Once he has been actually put in possession I cannot see what autherity the Sessions Judge has of directing his eviction and putting some one else in possession in proceedings such as these. The Sessions Judge has no power to decide the question of possession finally. All the power that he has is to report the matter to this Court stating that the order passed by the Magistrate is wrong. He baa by ordering restoration usurped the power of this Court which is the only Court which can finally determine the matter.