GANGADHAR SINGH Vs. SHYAM SUNDER SINGH

JUDGEMENT

(1.) THIS is a petition to revise an order dated 30-8-1956, passed by Sri F. C. Pradhan, First Class Magistrate, Bargarh, under Section 145 Cr. P. C. , declaring the possession of the opposite party (who was the first party before him) in respect of 168. 34 acres of Sir lands in village Kharsal and forbidding disturbance of such possession until eviction in due course of law. The petitioners were the second party in that proceeding before the Magistrate.

(2.) THE opposite party, Shyam Sunder Singha, is the eldest son of one Chandra bhanu Singh, who, prior to the abolition of the zamindhari system, was the zamindar of Kharsal Estate. One Hanuman Singha who is an agnate of the petitioners was the protected Thikadar of the village under the Zamindar. He was evicted from his rights in the village by the Zamindar by a decree of the Civil Court for failure to pay Thika Jema and possession also was obtained with the help of the court sometime in 1932. The Sir lands of the village, according to the opposite party, were in the actual possession of the protected Thikadar Hanuman Singha and consequently by virtue of the delivery of possession of the Civil Court in 1932, the Sir lands came into the khas possession of the Zamindar who since then exercised various acts of possession over the same either by cultivating them himself, or getting them cultivated through bhag tenants. In 1951-52 when the Kharsal Estate was under the Court of Wards that authority also exercised acts of possession over the Sir lands by leasing them out to several bhag tenants. The petitioners, however, contended that the Sir lands were not in the actual possession of Hanuman Singha but in their own possession and that consequently by virtue of the delivery of possession effected through the Civil Court in 1932, the zamindar obtained possession only of the landlord's rights over the Sir lands whereas actual cultivating possession in respect of the same remained all along with the petitioners. There was no serious trouble between the parties till 1954 presumably because so long as the Zamindari system was not abolished, the zamindar exercised considerable influence in the locality and nobody could venture to interfere with his possession, but after the abolition of the zamindari system and the consequent loss of prestige of the zamindar there was serious apprehension of trouble from the petitioners in respect of the Sir lands of the village. On 21-5-1954, some of the petitioners and some other tenants of the village filed a petition (Ext. B. 9) before the Revenue Office, Bargarh (Tahsildar) alleging that the Zamindar, Chandra Bhanu Singha, had dispossessed them from cultivating the lands, by force and that if the lands were not restored to them by the Revenue officer within a week they would take possession of the lands by force and sow paddy. This threat was actually carried into effect on 17-6-1954 when admittedly the petitioners and their helpers entered upon some of the Sir lands known as bundhen Duli and Darsa Uper three Duli ploughed the same and sowed paddy, disregarding the protests of the Zamindar's men. Opposite party Shyam Sunder Singha went to the Police Station on the next day (18-6-1954) and lodged a station diary entry (No. 174) complaining against the high-handed action of some of the petitioners and apprehending serious breach of peace. He also filed a regular complaint through his authorised agent, Mitra Bhanu singh, before the Sub-divisional Magistrate, Bargarh on 19-6-1954 (C. I. 125/t/134 of 1954) against seven persons incuding some of the petitioners for offences under Sections 447 and 147 I. P. C. In that complaint the Sub-divisional Magistrate, Bargarh, after local enquiry, summoned all the accused persons for offences under Sections 447 and 147 I. P. C. and that case is still pending trial. Apart from filing the aforesaid criminal case the said Mitra Bhanu Singh filed another petition before the Sub-divisional magistrate on 21-6-1954, alleging that in addition to the trespass committed by the petitioners' on Bundhon Duli and Darsa Uper three dull lands, on the 17th June 1954, there was serious apprehension that the tenants would forcibly dispossess the Zamindar of the Sir lands and requesting the Sub-divisional Magistrate to take action under Section 144 Cr. P. C. A complete list showing the plot number of the Sir lands of the village, having a total area or 168. 34 acres was attached to that petition. That was sent to the local police for enquiry and report. The police report is dated the 28th June 1954 and it contained a recommendation for initiating a proceeding under Section 145, Cr. P. C. in respect of only 14. 28 acres of Sir lands. An advance copy of that report sent to the Sub-divisional Magistrate who appears to have received it in his office on the 28th June 1954. But the original report Sent through the Inspector of Police came much later, and though it was put up before the Magistrate on the 14th august 1954, he passed orders only on the 25th August 1954 drawing up a preliminary order under Section 145 (1), Cr. P. C. in respect of 14. 28 acres of lands in M. C. No. 96 T/217. of 1954. On the very same day the opposite party filed a petition before the Magistrate requesting him to draw up a proceeding under Section 145 Cr. P. C. in respect of all the Sir lands of the village having a total area of 168. 34 acres. In a subsequent petition dated the 1st October 1954, he reiterated the same prayer and further alleged that apart from the incident of the 17th June 1954 in respect of Bundhan dull and Darsa uper three duties, the petitioners had cut and carried away paddy crops raised by him in another plot, viz. No. 896. Thereupon the Sub-divisional Magistrate started another proceeding under Section 145 Cr. P. C. on the 25th October 1954 in Mis. Case No. 120/t. 313 of 1954, for the remaining portion of the Sir lands. Subsequently, he amalgamated the two cases and disposed of them in one enquiry.

(3.) AS regards the allegation of removal of paddy crops from plot No. 896 sometime in September 1954, the opposite party filed a regular complaint of theft (C. I. 265 of 1954) against some of the petitioners, but on the 12th April 1955 the magistrate of Bargarh dismissed that complaint under Section 203 Cr. P. C. (vide ext. A) observing that from the enquiry it appeared that the accused persons had sown the paddy crop which they had removed.