DEORAM HAZARIKA Vs. CHAMA MURA

JUDGEMENT

(1.) THIS is an application under Section 439 of the Code of Criminal Procedure and is directed against the order dated 5 -7 -69 passed by a first class Magistrate at Tezpur in Misc. Case No. 195/68 under Section 145. Cr. P.C.

(2.) THE case of the first party was that he purchased 11B -4K -13L of land and got possession of the same and he was continuing in possession. As the second party tried to dispossess him. he filed an application for proceedings under Section 145, Cr. P.C. and accordingly the Magistrate drew up proceedings by an order dated 28 -3 -68. Both the parties in pursuance of that order of the Magistrate, filed their written statements, affidavits and other documents in support of their respective claims. The Magistrate however being unable to decide the question of possession, referred the case to the Civil Court under Section 146 (I) Cr. P.C. to decide the question of possession. The Munsiff after hearing the parties, passed an order on 30 -6 -69 declaring the second party to be in possession of 2 bighas only of the land. He could not come to any finding in regard to the remaining 9B -4K -13L of land. The learned Munsiff found as follows:

(3.) THE question then is whether the order of the Munsiff can be set aside under Section 439 of the Code of Criminal Procedure. The matter has been finally settled by a decision of the Special Bench of this Court, reported in AIR 1971 Assam and Naga. 53 in which it has been held: