SUBARNA SUNAMI Vs. KARTIKA KUDEI

JUDGEMENT

(1.) By an order dated 31-3-1953, the Magistrate, First Class, Bargarh, declared the possession of the disputed lands measuring 51.052 acres in favour of the first party (opposite paties herein) in M. C. No. 65/314 of 1952 -- a proceeding under Section 145, Criminal P. C. The Sessions Judge, Sambalpur, affirmed this order by his judgment dated 30-7-1953, in criminal revision Case No. 6 of 1953. It is against this order that the members of the second party have come up in revision to this Court.

(2.) The facts leading to the dispute lie within a short compass. Akula, the father of the first party was admittedly the Thikadar -- Gaontia, & after his death Kartick the first party, is the Thikadar. The disputed lands are the sir lands of the village enjoyed by the gaontias in lieu of maintenance. The members of the second party claim to be the daughters of one Bhagat who was the cousin of Akula and was the previous gaontiar and who, it is said, died issueless over 20 years ago. It has been found by both the Courts below that the petitioners are, in fact, not the daughters of Bhagat. It is contended that they are the daughters of one Jagat belonging to a junior branch. In view of the findings of the Court below and the overwhelming documentary evidence, learned counsel for- the petitioners did not reagitate this point before me, and it must be taken as established that the petitioners are not the laughters of Bhagat as alleged by them.

(3.) But apart from that, the main contention raised is that the order of the Magistrate violates the provisions Section 145 (4) as the first party had been dispossessed more than two months prior to the passing of the preliminary order. The admit-ed facts are that on 18-8-1952 the members of the second party laid a report with the Police that they had cultivated the disputed fields on Akhayatruthiya day, corresponding to 27-4-1952 and that the members of the first party damaged the seedlings on 18-6-1952. It appears that on the same day, viz., 18-6-1952, the first party reported that the petitioners went armed with lathis and axes and ploughed the disputed lands and sowed paddy that very morning, On 28-6-1952, the Police sent a report recommending immediate action under Section 145, Criminal P. C. and the Magistrate drew up a preliminary order on 2-7-1952. On these facts, it is argued that the dispossession of the first party took place on 27-4-1952, that is, more than two months prior to the date of the preliminary order, and that therefore the Magistrate had no jurisdiction to declare the possession of the first party. It will be noticed that the petitioners themselves alleged that they had sown paddy on 27-41952, but the members of the first party did not admit that they had been dispossessed on that date. It may well be that by sowing paddy, the petitioners made a sporadic attempt to take the possession of the lands by force on 27-41952. But the first party neither admitted, nor made any complaint about it. It must therefore be held that what the petitioners did on 27-4-1952 did not amount to dispossession of the first party, and that the first apprehension of a breach of the peace arose only on 18-6-1953 when both parties reported to the Police against each other about a possible clash. It is well settled that a fugitive act of trespass or interference with possession does not amount to dispossession. The dispossession referred to in Section 145, Criminal P. C. must be one that amounts to a completed act of forcible driving out of a party in possession.