JANAMA BHOI Vs. DRAUPADI BHOIANI

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Sambalpur recommending that the Magistrate's order declaring first party's possession in a proceeding under Section 145, Cr. P. C. should be set aside. He characterises the Magistrate's order as one without jurisdiction. Mr. G.B. Mohanty appears for the second party and in support of the reference.

(2.) The short facts are that the first party, a woman, filed an application on 24- 6-1948 in which she said that she had been dispossessed from her land, the subject-matter of the present dispute, on 13-6-1948. After she submitted the petition asking for starting a proceeding under Section 145, there was a great delay in completing the necessary enquiry by the Police and in drawing up the preliminary order calling upon the respective parties to appear and file statements as to their respective claims to possession. The preliminary order, contemplated in the section, was passed on 6-10-48. The learned Magistrate came to a finding that the first party was in possession till dispossessed. The relevant paragraph of the trial Magistrate's order reads as follows:

(3.) The finding is recorded in very clear and lucid terms. Mr. M.S. Rao, appearing for the first party (opp. party), contends that the Magistrate is in error in holding that the first party was ousted from possession. He would interpret the evidence of the first party's witnesses including the first party herself as amounting to disturbance in possession but not dispossession. I have read that petition dated 24-6-48 filed by the first party in which she makes a clear admission that she has been dispossessed since 13-6-1948. No doubt, in finding that there was delay in the initiation of the proceeding, she filed a second application in which she spoke in terms of disturbance ot possession. Her evidence, however, in Court, is clear in which she says "for fear of being murdered I did never go upon the land". The evidence of P. W. 2 has been referred to at the bar. But in the face of first party's own admission, P. W. 2 shall not be allowed to improve upon her case. Particularly in view of the clear finding on which the reference is based. I am not inclined to interfere with the finding of fact.