PURNA CHANDRA BISWAL Vs. BRINDABAN BISWAL

JUDGEMENT

(1.) First party member in a proceeding under section 145 of the Code ofCriminal Procedure (hereinafter referred to as the Code) is the petitioner against the revisional order of the Sessions Judge. The learned Sessions Judge by the impugned order has set aside the order of the Magistrate and dropped the proceedings under section 145 of the Code mainly on the ground that the parties being joint and there being no partition amongst them the proceeding under section 145 of the Code is inappropriate.

(2.) Admittedly, the petitioner and opposite parties are brothers. It is the case of the petitioner first party that there was a partition amongst the brothers during the life-time of their father and the disputed Bhogara lands fell to the petitioners share whereas the raiyati lands belonging to the father fell to the share of the opposite parties. Since the opposite parties created disturbance in the possession of the petitioner after the death of their father, the petitioner approached the Magistrate for initiating a proceeding under section 145 of the Code. The case of the opposite parties-second party members, on the other hand, was that there was no partition amongst the brothers and, therefore, each member of the joint family must be assumed to be in possession of the entire joint family property.

(3.) The learned Magistrate on the materials placed before him came to the conclusion that none of the witnesses produced by the first party member satisfactorily proved the possession of the petitioner in respect of the case land. He also entirely discarded the evidence adduced on behalf of the second party members-opposite parties. But as rent receipts were produced on behalf of the first party-petitioner, the Magistrate came to the conclusion that the petitioner was in possession of the land on the date of the preliminary order. On the question of partition, though there was no clear finding, yet, the Magistrate accepted the case of oral partition as alleged by the first party petitioner.