KURPAN ALI Vs. SRIRAM CHANDRA TALUKDAR

JUDGEMENT

(1.) THIS revision petition arises out of a proceeding under Section 145 of the Code of Criminal Procedure.

(2.) THE first party, opposite party, namely Sreeram Chandra Talukdar, Secretary of the Bohori Gaon Samuhia Krishi Samabai Samity, a registered Co -operative Society, filed a petition under Section 145, Criminal Procedure Code on 3.5.1971 alleging that the second party petitioners created disturbance in the possession of the first party over the land in dispute. The application was sent by the Magistrate to the Police for enquiry and report and the Police submitted a report dated 21.5.1971. The Magistrate considered the Police report and being satisfied that there was likelihood of breach of the peace with respect to the possession of the land in dispute he drew up a proceeding under Section 145, Criminal Procedure Code by passing a preliminary order on 31.5.1971. Accordingly notices were issued on both the parties requiring them to file written statement, affidavits, documents, etc. In the police report the first party was Sreeram Chandra Talukdar representing the Co -operative Society and the second party were the following persons - (1) Kurpan Ali, (2) Sahaburuddin, (3) Jabed Ali, (4) Najmaluddin, (5) Kader Ali, (6) Jalimuddin, (7) Maharuddin, (8) Hatu Khan and (9) Dangraj Mia. Both the parties appeared and filed their written statements, affidavits of witnesses and some documents. The learned Magistrate after considering the material on record by his order dated 22.9.1971 declared possession in favour of the first party. Against the said order the second party moved the learned Sessions Judge who referred the matter under Section 438, Criminal Procedure Code to the High Court with a recommendation for setting aside the order of the learned Magistrate or for passing such other orders as deemed fit and proper by the High Court. The reference was numbered as Criminal Reference No. 8 of 1972 and the High Court disposed of that reference by order dated 27.11.1973 by which the impugned order dated 22.9.1971 was quashed and the case was remanded to the learned Magistrate for passing appropriate order on the materials on record after complying with the requirements of Sub -Section (4) of Section 145, Criminal Procedure Code. The case was then taken up by another Magistrate after remand, who heard the parties at length, considered the materials on record and declared possession in favour of the first party by his judgement and order dated 10.7.1974. The present revision petition is directed against the order of the learned Magistrate passed on 10.7.1974.

(3.) FROM the judgement of the learned Magistrate it is found that the preliminary order in the proceeding under Section 145, Criminal Procedure Code was passed on 31.5.1971 on the basis of the Police report dated 21.5.1971 which was made on the application filed by the first party on 3.5.1971. The land regarding the possession of which the dispute arises, is covered by Dag No. 58 of Gumir Pathar village and Dag No. 16 of Kapah Tali village and the total area of the land in dispute is 120 Bighas. The case of the first party, that is the Co -operative Society, is that this area of 120 Bighas of land has been allotted to the co -operative Society for cultivation by the appropriate authority and while it was possessing the same some of the members of the second party created disturbance in its possession. The case of the second party is that this area of land is in possession of some of the members of the second party for the last four years as adhiars, mortgagees etc. under some of the members of the Co -operative Society and that some of them have got their residential houses thereon. The first party filed its written statement, six affidavits and six documents. The second party filed five affidavits and eight documents. The learned Magistrate considered the materials on record and came to the conclusion that the first party was in possession of the disputed land at the relevant time and accordingly declared possession in favour of the first party and restrained the second party from interfering with the possession of the first party over the land in dispute.