CHAMRU MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing the order dated 6.1.2005 passed by learned Additional Sessions Judge- cum-FTC No. 5, Khagaria in Cr. Revision No. 74/03, by which he affirmed the order dated 2.5.2003 passed in Misc. Case No. 20(M)2/ 97 whereby and whereunder the learned Sub-Divisional Magistrate, Khagaria had passed order regarding restoration of possession of the land in dispute.

(2.) It appears that the petitioner was second party to the proceedings under Section 145 of the Code of Criminal Procedure (in short as the 'Code') whereas one Dayanand Prasad was first party to the proceeding. The land in dispute was plot No. 3580 under khata No. 725 area 14 katha 4 dhurs. The said proceeding under Section 145 of the Code was initiated in Case No. 455(M)/86. Both the parties in the said proceeding filed their show-cause and adduced evidence and the learned Executive Magistrate by order dated 7.10.1994 declared the possession of the first party over the land in dispute. The heirs of Dayanand Prasad filed Misc. Case No. 20(M)2/97 before the Sub-Divisional Magistrate, Khagaria that though the possession of Dayanand Prasad who was husband of petitioner No. 2 and father of petitioner Nos. 3 and 4 was declared but the present petitioner i.e. 2nd party to the proceeding was in possession over the land in dispute and so he did not prefer any revision against the final order dated 7.10.1994. The heirs of Dayanand Prasad asserted in Misc. Case No. 20(M)2/97 that during the pendency of the proceedings the 2nd party to the proceeding dispossessed Dayanand Prasad forcibly of which information was given to the Court in writing on 16.6.1990, 10.7.1992, 20.9.1992 and 5.4.1993 but in spite of that the learned Magistrate after considering all the materials declared the possession of first party Dayanand Prasad over the land in dispute. The learned Magistrate heard both the parties of Misc. Case No. 20(M)2/97 and by impugned order dated 2.5.2003 ordered restoration of possession in favour of heirs of Dayanand Prasad. Against the said order dated 2.5.2003, the petitioner preferred Cr. Revision No. 74/03 before the District and Sessions Judge, Khagaria. The matter was finally heard and disposed of by learned Addl. Sessions Judge-cum-F.T.C.-5 who affirmed the order of Magistrate and dismissed the revision. Against the said order of dismissal the petitioner has preferred the present application before this Court.

(3.) Now under sub-section (1) of Section 145 of the Code the Magistrate can initiate the proceeding to decide which party is in actual possession. The word "actual possession" means the possession of the person who has feet on the land, who is ploughing it or growing crops, irrespective of whether he has title or right to possess it. Possessions means lawful possession and not possession taken by force in defiance of law. Then proviso to sub-section (4) of Section 145 of the Code refers to forcible and wrongly dispossession within two months next before the date of police report or other information received by the Magistrate or after that date and before the date of preliminary order under sub-section (1). Therefore, a party who was not in possession within two months from the date of initiation of the proceedings cannot be declared to be in possession. The proviso to sub-section (4) could be successfully invoked only if the party has been forcibly or wrongfully dispossessed within two months prior to the date of preliminary order. Now the position in the present case is that on the date of final order the Magistrate found first party Dayanand Prasad to be in possession over the disputed land and so he declared his possession and also did not pass any specific order in respect of restoration of possession although there was information about his wrongful dispossession during the pendency of the proceedings.