KIRTI CHANDRA BARIHA Vs. DUKHU DAS

JUDGEMENT

(1.) THE revision is directed against an order declaring that member -1st Party who is Opposite Party No. 1 is entitled to possession of the disputed lands and ordering restoration of possession to him in a proceeding under Section 145, Criminal Procedure Code Opposite Party No. 1 filed a petition on 22.1.1968 before the learned Magistrate alleging that while he was in cultivating possession of the disputed lands, they were attached by the police on 17.10.1964 and prayed for restoration of possession. On the learned Magistrate directing the police for a report, the officer -in -charge of the police station in his report dated 4.3.1966 informed the learned Magistrate that he had already submitted a report to start a proceeding under Section 145, Criminal Procedure Code on 29.10.1964. The learned Magistrate apprehending breach of the peace, passed a preliminary Order under Section 145, Criminal Procedure Code and parties were directed to file their written statements, documents and affidavits.

(2.) THE contentions, in this revision, advanced for the petitioner are that (1) the learned Magistrate's order is without jurisdiction as it has been found that Opposite Party No. 1 was not in possession of the disputed lands either on the date of the preliminary order which was passed on 11.4.1966 or (nor ?) was forcibly and wrongfully dispossessed from the said lands within two months preceding the date of the preliminary order and (2) the learned Magistrate was not justified in passing the preliminary order on 11.4.1966 on the basis of a police report dated 29.10.1964 after lapse of such a long time.

(3.) IN the present case, what has transpired is that the matter was reported to the police in 1964 when disturbance to possession is said to have occurred. Thereafter, till 21.1.1966, 1st Party did not take any steps to move or persuade the Magistrate to draw up a proceeding. It is only on 22.1.1966 that he filed a petition on which the learned Magistrate called for a report from the police and was informed that a report had already been submitted to him on 29.10.1964. If the party had shown due diligence and proved to the satisfaction of the Magistrate by moving a petition before him or otherwise, a proceeding could have been started within two months of the alleged dispossession. As has been held in the aforementioned decision, the delay in this case was mainly due to the laches of the party and not due to the Magistrate, as it was necessary for him to be satisfied before he initiated the proceeding. When, admittedly, therefore, 1st party was out of possession since October 1964, the learned Magistrate clearly erred in declaring him to be in possession either by construing that he will be deemed to have been in possession on the date of the preliminary order or deemed to have been forcibly and wrongfully dispossessed within two months preceding that date. In these circumstances, as the petitioner must be held to have been in possession of the disputed lands since more than two months prior to the date of the preliminary order, his possession should be maintained until evicted in due course of law.