BALAK RAM Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Bilaspur under Section 438, Criminal Procedure Code, recommending that an order under Section 145 of the Code passed by a first class Magistrate of Bilaspur declaring one Atma Ram to be entitled to possession of a 'talai', or pond, comprising Khasra No. 206 in village Berthin tehsil Ghumarwin, until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction, be set aside.

(2.) THE pond is recorded as in the co -owner ship of a large number of persons, including the said Atma Ram and one Balak Ram. The dispute arose between these two persons. The former pleads that under a partition the plot has been allotted to him and he is entitled to bring it under cultivation. He professes to have been cultivating the plot for four years. Balak Ram challenges Atma Ram's right to do so and is trying to maintain the plot as a pond. His contention is that none of the co -owners has been in actual possession of the pond, and that the public in general take water therefrom.

(3.) THE proceedings started on a police report by S. I. Imam Din dated 2.6.1952, that a dispute likely to cause a breach of the peace existed concerning the said talai between Atma Ram and Balak Ram. The Magistrate made a preliminary order requiring the parties to put in written statements of their respective claims, which were duly filed, held an inquiry and passed the afore said order. I have heard the learned Government Advocate and the learned counsel for Balak Ram in support of the reference, and the learned counsel for Atma Ram opposing the same, and am of the opinion that the reference should be accepted and the order of the Magistrate set aside