SUREN DAS Vs. DHANBAR ALI

JUDGEMENT

(1.) THIS application under Section 439 of the Code of Criminal Procedure by the first party is directed against an order passed by a first class Magistrate at Gauhati in a proceeding under Section 145 of the Code of Criminal Procedure in which possession was declared in favour of the second party.

(2.) THE first party is the President of a Farming Co -operative Society and the second parties are also members of a Farming Co -operative Society. The first party's case is that his co -operative society owned 120 bighas of land and as it was inadequate for the Society, it applied for the disputed land measuring 183 B. 3 K. 2 Chataks, which is to the contiguous north of the first plot of 120 bighas. But as there was threat of dispossession by the second party and there was likelihood of breach of the peace, the first party prayed for a proceeding under Section 145 of the Code of Criminal Procedure. In pursuance of that application the Magistrate drew up proceedings and asked the parties to file their written statements, affidavits and documents. Both the parties filed their respective written statements, affidavits and documents. The first party filed affidavits sworn by ten witnesses and five documents. The second party filed affidavits sworn by seven witnesses and seven documents. The learned Magistrate, after consideration of the written statements, affidavits and the documents came to the finding that the second party, at the relevant time, was in possession of the disputed land and accordingly he declared their possession.

(3.) SHRI B. K. Goswami, learned counsel appearing for the petitioner, submits that the learned Magistrate committed two illegalities - (i) he committed an illegality in considering a certified copy of an affidavit filed in another case, namely, case No. 76 (M) 70 and in considering an attested copy of a letter written by the Sub -Divisional Planning Officer of Gauhati; and (ii) that the learned Magistrate did not consider the affidavits of the first party.