DEORAM HAZARIKA Vs. CHAMA MURA

JUDGEMENT

(1.) THIS is an application under Section 439 of the Code of Criminal Procedure and is directed against the order dated 5 -7 -69 passed by a first class Magistrate at Tezpur in Misc. Case No. 195/68 under Section 145, Criminal Procedure Code

(2.) THE case of the first party was that he purchased 11B -4K -13L of land and got possession of the same and he was continuing in possession. As the second party tried to dispossess him, he filed an application for proceedings under Section 145, Criminal Procedure Code and accordingly the Magistrate drew up proceedings by an order dated 28 -3 -68. Both the parties in pursuance of that order of the Magistrate, filed their written statements, affidavits and other documents in support of their respective claims. The Magistrate however being unable to decide the question of possession, referred the case to the Civil Court under Section 146(I) Criminal Procedure Code to decide the question of possession. The Munsiff after hearing the parties, passed an order on 30 -6 -69 declaring the second party to be in possession of 2 bighas only of the land. He could not come to any finding in regard to the remaining 9B -4K -13L of land. The learned Munsiff found as follows : - "On perusal of all papers in the records this Court is of the opinion that the second party was in possession of the two bighas (where Ahu paddy was grown) out of the disputed land at the time of occurrence. For want of proper evidence, it cannot be decided as to which party was in possession of the rest of the disputed land at the time of occurrence." The learned Magistrate on receipt of the records from the Munsiff, passed the following order on 5 -7 -69 : - "Perused the report of the learned Munsiff. It appears that the learned Munsiff has declared possession of the 2nd party in respect of 2 bighas of disputed land only. He has failed to decide the question of possession in respect of other 9B -3K -13L of land. There is no specific boundary of the two bighas of land which has been declared to be in possession of the 2nd party. In view of the above finding of the Civil Court, no order within the purview of Section 145(6) can be passed by this Court. Hence the proceeding is stayed till the parties establish their claim of possession in a Court of competent jurisdiction".

(3.) THE present petition has been filed by the 1st party against this order. His submission is that the order of the learned Magistrate is not in conformity with Section 146(1 -B) of the Code of Criminal Procedure which, inter alia, provides that : - "The Magistrate shall on receipt thereof proceed to dispose of the proceedings under Section 145 in conformity with the decision of the Civil Court." The petitioner submits that this order is not in conformity with the order of the Munsiff and therefore cannot be sustained. He however realises the position that even if this order be set aside and the learned Magistrate passes an order in conformity with the order of the Munsiff, then possession has to be declared of the 2nd party in respect of 2 bighas only. He therefore submits that the order of the Munsiff also cannot be sustained.