PADMANAVA BHATTACHERJEE Vs. BIDHUBUSHAN DAS

JUDGEMENT

(1.) THIS is a reference made V the learned Sessions Judge under Section 438 of the Criminal P. C,, recommending that the order of the Sub -Divisional Magistrate, Kamalpur, dated 31 -8 -1956 passed in Misc. Cri. Case No. 3 of 1955, a proceeding under Section 145 of the CrIPC declaring that the opposite party (Bidhubhushan Das and others) who were the applicants (first party) before the S. D. M. were in possession of the land in -dispute and forbidding the present petitioners -(Padmanava Bhattacherjee and others) who were the opposite party (second party) before the S. D. M.f from disturbing their possession, till evicted in due -course of law be set aside.

(2.) THE dispute relates to two adjoining pieces of land, respectively 4 and 5 kanis in area, and situate at Mouza Hererkhola, the first one of which according to the opposite party in this reference; was purchased by Janadasundari, and the second by her brother Bidhubhushan Das (one of the applicants before the S. D. M.) in 1951. and were accordingly in their possession. Janadasundari was -not made a party to the proceeding before the S. D, M., most probably because the allegation was that Bidhubhushan her brother managed her land also on her behalf.

(3.) ON the aide of the Petitioners (second party) reliance was placed on Chanan Singh v. Emperor 39 Cri LJ 702 : A.I.R. 1938 Lah 345 (A), in which it was held that failure to draw up a preliminary order and affix a copy of the preliminary order at the spot vitiates all the proceedings and the final order, passed in such a case, can be set aside. Obviously that was a case in which the Magistrate got no jurisdiction as he did not pass a preliminary order under Section 145 (1), and coupled with it, was the irregularity of not affixing a copy of the necessary order on the spot.