JAGABANDHU BISWAL Vs. GOLEKHA DEHURY

JUDGEMENT

(1.) THE Petitioner and the opposite party are close relations. There was a previous proceeding under Section 145, Code of Criminal Procedure between them which ended in favour of the Petitioner -first -party on 31 -7 -1962 and he was found to be in possession. During the pendency of this proceeding the disputed property was kept in the Zimanama of P.W. 3. Under orders of the Court the police delivered possession of the said property to the Petitioner on 17 -8 -1962 and submitted a report to that effect on 18 -8 -1962.

(2.) IT is the case of the Petitioner that after the delivery of possession was effected to him, he remained in possession of the disputed property, but in spite of the order of the Magistrate in his favour in the previous proceeding under Section 145, the opposite party again threatened to dispossess him and there was further apprehension of the breach of peace. Accordingly on 17 -11 -1963 he made a petition (Ext. 3) for taking action under Section 107, Code of Criminal Procedure against the opposite party.

(3.) ON enquiry the learned Magistrate found that there was no actual delivery of possession in favour of the Petitioner, first -party and that the opposite party was still found to be in physical possession in 1(f)(3) long after the alleged delivery of possession in 1963 long after the alleged delivery of possession on 17 -8 -1962. He further found that there was no apprehension of the breach of peace prior to 17 -11 -1963 when the application was filed by Petitioner. He therefore refused to take action under Section 107, Code of Criminal Procedure and discharged the opposite party under Section 119. It is against this order of discharge the present revision has been filed by the first party.