JOGENDRA KUMAR DAS Vs. ASWINI KUMAR CHOUDHURY

JUDGEMENT

(1.) THIS is a Criminal Reference made by the learned Sessions Judge, Tripura, with a recommendation for setting aside the order dated 4 -5 -64 passed by the Magistrate First Class, Belonia, in Criminal Misc. Case No. 12 of 1963.

(2.) THE facts giving rise to this reference are that on 22 -4 -63, the opposite party, Aswini Kumar Choudhury as 1st party filed a petition before the Sub -Divisional Magistrate, Belonia with the contention that in the current year he had grown Bajal and Aush paddy in 8 kanis of land owned and possessed by him and appertaining to jote No. 21 of Mouja Radhakeshoreganja under Belonia Tahashil that there is a very old cherra lying to the south of this land and the second party members Jogendra Kumar Das and Kali Mohan Das have wrongfully constructed a bundh on the said cherra about 5/6 days back and obstructed the water and that as a result of that the crop standing in the entire 8 kanis of land has been destroyed therefore, immediate steps be taken to cut down the bundh for the drainage of water. On receipt of the petition the learned Magistrate directed the O/C., Belonia Police Station to submit report. On 3 -5 -63, the 0/C. submitted the report and the learned Magistrate after going through it passed an order for drawing up the proceedings under Section 133 Cr. P.C. against the second party members asking them to clear the public water passage within 5 days. The second party members on being served with the notice appeared and filed written statement. Their case was that the bundh in question was not either on any cherra or public water passage, but it was on dhepa land owned and possessed by the second party members appertaining to jote No. 52 of mouja Radhakeshoreganja under Belonia Tahashil. Thereupon the learned Magistrate passed an order that he would visit the spot as prayed for by both the parties on 1 -6 -63. Thereafter, on 8 -9 -63, the learned Magistrate visited the locality personally and made a memorandum of facts observed by the inspection and gave copies thereof to the parties. Thereafter, on 4 -3 -64, 5 witnesses on behalf of the second party members were examined by the learned Magistrate. Thereafter, the case was fixed for 18 -3 -64 for arguments. On 24 -4 -64 he heard arguments and on 4 -5 -64 he passed the impugned order as follows:

(3.) AT the time of arguments none appeared on behalf of the petitioners to support the reference. The Learned Counsel for the opposite party appeared and opposed the reference.