ELEHUS MIA Vs. ALI AHMED KAZI

JUDGEMENT

(1.) IN proceedings u/s. 145 Criminal Procedure Code which were started by Ali Ahmed Kazi against Elehus Mia and others on 3 -10 -50, Shri B. Dutta Magistrate, first class, Udaipur on 30 -5 -51, allowed the application of the first party by lifting the attachment of the land in dispute already made by his order dated 25 -11 -50, giving its possession to him and directing that he should remain in such possession until legally evicted. It was alleged that the 2nd party was in possession of the land from the month of Pous of that year. The preliminary order in this case was drawn by the Magistrate on receiving the police report called by him on 25 -11 -50. In his judgment the learned Magistrate has found that the second party had possessed the land forcibly on 12th Sept. 1950 and since then they were in possession from over 2 months before the proceedings were drawn up by him on 27 -11 -50. It has also been held by him that the 2nd party was trespasser and its possession was not peaceful.

(2.) ON a motion having been filed by the 2nd party against the above order, the learned Sessions Judge Shri Umadas Gupta, has referred the case to this court u/s. 438, Criminal Procedure Code for setting aside the order of the Magistrate made in favour of the 1st party mainly on the ground that the learned Magistrate was not entitled to pass the above order in favour of the 1st party in view of sub -section 4 of Section 145, Criminal Procedure Code as the 2nd party, according to his own finding, has already been in possession of the land more than 2 months before the passing of the order on 27 -11 -50. The explanation of the Magistrate in this connection is far from satisfactory.

(3.) FROM the finding of the learned Magistrate himself it is clear that the 2nd party was in de facto possession of the land in dispute for more than 2 months before the initial order of the learned Magistrate passed on 27 -11 -50. The question of possession has to be determined with reference to a specified point of time, viz., the date of the initial order or in case of forcible dispossession, a date within 2 months next preceding such order - 'Tarapada Biswas v. Nurul Huq', 32 Cal. 1093. This is the material question for decision. The party complaining disturbance of possession which is likely to give rise to a breach of the peace must show that it was in possession within two months of the initial order required to be passed u/s. 145, Criminal Procedure Code In case of a forcible dispossession more than 2 months prior to preliminary order, possession of the opposite party must be maintained.