RADHANATH BARTHAKUR Vs. BANARASHIRAM SAHU

JUDGEMENT

(1.) THIS is a reference made by the learned Ses J. Upper Assam Districts, in the case of one Radhanath Barthekur v. Banarashiram Sahu in which the learned 1st Class Mag., Jorhat, passed the following order: In order that the 2nd party (Radhanath Barthekur) shall not take possession of the strip of land (25 x 10 cubits) towards the eastern end of dag No. 1897, that is, alongside the Bank of Assam building, to the exclusion of the enjoyment of the right of use, as an easement until he shall obtain the decree or order of a competent Ct. adjudging him to be entitled to exclusive possession. The learned Ses, J. has recommended that the order passed by the 1st Class Mag. of Jorhat, dated 18 -6 -1949, be set aside, having regard to the following facts,

(2.) IT appears that Radhanath Barthekur secured for himself settlement of a small plot of land (dag No. 1897) abutting on the Assam Trunk Road, Jorhat, comprising an area of 11 lesass, at an auction sale held by Govt. for a sum of Rs. 115000. This settlement was confirmed, on appeal, by this Ct. Shortly afterwards, Radhanath Barthekur commenced building a house on the land when, it is alleged, Banarashiram Sahu put impediments in the way of Radhanath Barthekur, whereupon the latter instituted proceedings under Section 144, Cr.P.C. against Banarashiram Sahu. In due course, the learned Mag. paused an order on 27 -6 -1949 whereby he directed Banarashiram Sahu not to trespass upon dag No. 1897 and not to cause any obstruction or annoyance to the 1st party (Radhanath Barthekur) in constructing a house. On the following day, i.e. on 28 -5 -1949, Banarashiram Sahu filed an appln. before the same Mag. under Section 147, Cr.P.C. upon which a notice was issued to Radhanath Barthekur to show cause against the appln, made by Banarashiram Sahu, and after taking evidence, the learned Mag. came to the conclusion that Banarashiram Sahu had established a right of way over the disputed land vide his order dated 18 -6 -1949.

(3.) THE learned Ses, J. points out that the Mag, upon receiving the appln. from Banarashiram Sahu, did not follow the procedure laid down; by law that far from being satisfied as to the likelihood of a breach of the peace, he should have come to the conclusion that there was no -such likelihood in view of his own order passed in the proceedings under Section 144, Cr.P.C. only the previous day. The learned Ses, J. further points out that the same Mag. in the proceedings under Section 144, Cr.P.C. had decided that Banarashiram Sahu had no right to the land in suit and had directed him not to trespass upon the land of Radhanath Barthekur that in passing the order on 18 -6 -1949 upon the appln. of Banarashiram Sahu directing Radhanath Barthekur not to take possession of the strip of land, the learned Mag. passed an order at variance with his previous order, dated 27 -5 -1949.