ABDUL HAQUE Vs. STATE

JUDGEMENT

(1.) By this application under Sec. 397/401 of the Code of Criminal Procedure, 1973, the first party as petitioner has challenged the judgment and order dated 22.3.2012 passed by the Learned Sessions Judge, Karimganj in Criminal Motion No. 42(4)/2010 whereby the learned Sessions Judge allowed the revision and set aside the order of the learned Executive Magistrate passed in Misc. case No. 610(M)/99 under section 145 Crimial P.C. declaring possession of the first party over the proceeding land and thereby vacating the order of attachment.

(2.) The first party approached the learned Executive Magistrate at Karimganj claiming that the proceeding land was settled with him by Jalalnagar Tea Estate and he had been in possession thereof without any interference by any one until the second party members started to create trouble with a view to disturbing the possession of the first party and consequently apprehension of the breach of peace had arisen in the locality. The learned Executive Magistrate by order dated 29.11.1999 drew up a proceeding under section 145 Crimial P.C. and issued notice to the second party. Thereupon the second party appeared and submitted written statement claiming that they were actually settled with the proceeding land by the garden authority and that they had been in possession thereof for long period and as such their possession be declared. Both the sides led evidence on the rival contentions. While the first party examined three witnesses including himself, the second party examined two witnesses including himself. The PW-1 (Abdul Haque) stated on oath the facts stated in his written statement and claimed that a proceeding under section 144 Crimial P.C. was drawn with respect to the same land in his favour by the learned Executive Magistrate after obtaining police report. In course of his cross examination he admitted that he did not have any document to establish settlement of the land in his favour by the garden authority and that he obtained the land from the manager. He further stated that the land is a ceiling surplus one and in the records of rights the same has been shown as khas land. He also stated that the land is near the house of the second party members and at a distance from his house. PW-2 Abdul Rasid claimed to have seen the first party about 8 years back in cultivating the proceeding land when the second party objected and consequently the same resulted in dispute. In course of cross examination he admitted that he lived in the same village where the first party members lived. He could not say as to when had the first party taken settlement of the garden authority but he knew that first party member was not a landless person. He could not say as to when did the second party members try to create trouble. He also could not say as to when did the police visit the spot. Abdul Salam being the PW-3 in the case claimed that first party member was in possession of the proceeding land for a period over 25-30 years, that the second party was never in possession but they took away the paddy grown on the proceeding land. In course of cross examination he admitted that he did neither possess any land near the proceeding land nor did he cultivate land of any person at any point of time. He admitted that second party member is the labourer of Madanpur Tea Estate. He admitted that he has his house only 2 houses next to the house of the first party member whereas the disputed land is near Madanpur Tea Estate and in between there is a village known as Nayagram. He further stated that he was brought by the first party member to depose in his favour.

(3.) The second party members examined two witnesses. While Dilip Das was examined as DW-1 one Ranvir Chakraborty was examined as DW-2. In course of his deposition, DW-1 stated that the first party member was earlier a surveyor of the tea estate but later on he gave up the job and stated working as a scribe in sub-Registrar office. He stated that the proceeding land is about 10/12 cubits away from his house and he had been possessing the same since 1990 by way of cultivation. He stated that the land has been attached in his possession. He stated that the first party had earlier filed another case against him with regard to the same land but before the said case was taken to finality, the present case was filed. DW-2 (Ranvir Chakraborty) is an employee of Tea Estate and he testified that the proceeding land was settled with the second party member by the tea estate for doing cultivation and he did never see the first party to be in possession of the same. He stated that he had been in the service of the tea estate since 1978. On perusal of such documents and deposition of the witnesses the learned Executive Magistrate by order dated 24.2.2009 held that it was not possible to declare possession of either of the parties, that the dispute was civil in nature and that it would be just and proper on the part of the parties to approach competent Civil Court for getting necessary declaration.