JAPAN MOHANTA Vs. DUBULIA MUNDA

JUDGEMENT

(1.) THE 2nd party members in a proceeding under Section 145, Criminal Procedure Code are the petitioners herein. According to the 1st party, the land in dispute measuring 1.85 acres appertaining to plot No. 259 has been in his possession since 40 years or so. On 25 -10 -66, the 1st party reported at the P. S. that the 2nd party members forcibly reaped the crop grown by him. After enquiry, police submitted a report, on the basis of which, the preliminary order was passed under Section 145, Criminal Procedure Code, on 23 -11 -66. The 2nd party members, on the other hand, allege that 1.20 acres out of the disputed land appertains to their plot No. 258 and 0.4 acre appertains to plot No. 252. The disputed land consists of 11 kitas which have been divided among them and each is in possession of a portion. They assert that the 1st party was never in possession of the subject -matter of dispute.

(2.) IN support of their respective claims of possession of the disputed land, each of the parties filed four affidavits. During the course of enquiry, an amin was deputed who after local investigation reported that the subject -matter of dispute partly appertains to plot No. 252/1 and partly to plot No. 258/1. The learned Magistrate, however, confined his consideration to the determination of actual physical possession of the disputed land and relying on the affidavits filed on behalf of 1st party and the report of the police, declared the 1st party to be in possession and prohibited the 2nd party from entering upon the land until eviction in due process of law.

(3.) LEARNED counsel for petitioners points out that the 1st party does not claim to be in possession of any land appertaining to plot No. 258 or 252. So also, the 2nd party members do not claim possession of any land appertaining to plot No. 259. During the course of enquiry, the learned Magistrate deputed an amin who after local investigation, found and reported that the subject -matter of dispute appertains to plot Nos. 252 and 258. It is argued that in the face of this report, the learned Magistrate has committed an error in finding possession of the disputed property with the 1st party who himself does not claim any land appertaining to plot Nos. 252 and 258. As has been rightly observed by the learned Magistrate, the question whether the subject -matter of dispute appertains to 1st party's plot No. 259 or 2nd party's plot Nos. 252 and 258 is not a matter for determination in a proceeding under Section 145, Criminal Procedure Code The jurisdiction of the Magistrate in such a proceeding is confined to determination of the question of actual physical possession of the subject -matter of dispute on the date of the preliminary order irrespective of the rights of any of the parties to claim possession thereof. Therefore, the learned Magistrate has correctly approached the question in observing that the only fact to be decided in the proceeding is the fact of actual physical possession of the disputed land.