AJIT SHARMA Vs. MADHU SHARMA

JUDGEMENT

(1.) As per the order of this Court dated 21.2.1992 the petition has been taken up for final disposal. Heard Mr. D.N. Choudhury, learned counsel for the petitioner and also Mr. J.M. Choudhury ,learned counsel for the opposite parties.

(2.) On 13.2.1991 the Executive Magistrate, Gauhati registered a case being Case No. 52m/91 and drew up a proceeding U/s 145 Cr. P.C. Though there was a prayer of the present petitioner before the Court, no order U/s. 146 Cr. P.C. was passed and the court directed issuance of notice on the 2nd party i.e. opposite parties herein, to show cause in respect of the proceedings and also for consideration of the prayer for issuing order U/s. J46 Cr. P.C. on the next date, which was fixed on 16.2.199 1. The schedule of the land was also mentioned in the said order and the last line of the order runs as follows: This schedule shall, however, not include any dwelling house standing on it, if any.

(3.) It may be stated that in the petition before the Executive Magistrate the present petitioner stated:That the 2nd party was sheltered by the father of the 1st party before his death on compassionate ground to live in a temporary structure concerning about 1/2 katha of land on the eastern pan of the land in question. The arrangement was purely temporary which was borne out of the love and affection from the father of the 1st. party and his humanitarian values". In other words, the 2nd pany was put in possession though it was stated to be temporary, in respect of 1/2 katha of the disputed land on the eastern side as described in the schedule in the above order dated 13.2.1991. Thereafter, the Executive Magistrate passed an order dated 16.2.1991fter the appearance of the 2nd party, who prayed for time to file written statement The prayer was allowed but the Executive Magistrate after going through the records and to avert any future breach of peace invoked Section 146 of the Cr. P.C. and directed the parties to refrain from entering into the disputed land.