KAILASH NONIA Vs. SHIBU NANIA

JUDGEMENT

(1.) This application has been filed by the second party against the impugned order by which the learned Magistrate has converted the proceeding under section 144 of the - Code of Criminal Procedure (hereinafter referred to as the CodeT) into a proceeding under section 145 of the Code. It appears that in the proceeding under section 144 of the Code, both the parties appeared and filed - their respective show cause. Case of the petitioner was that both the parties were in joint possession of the subject of dispute. So far the opposite party No.1 meaning thereby the first party is concerned, his case is that the parties belong to a Mitakshara Coparcenary and the property in question belongs to the joint family of the parties. According to him, although there was no partition, but for the sake of convenience the parties were separately cultivating the joint family properties and the subject of dispute was being cultivated separately for the sake of convenience by the first party and the second party had no right to create any disturbance in peaceful possession of the first party.

(2.) The learned Magistrate after taking into consideration cases of both the parties as recorded a - finding which is in consonance with their respective cases that the property in question belongs to the joint family of the parties and for the sake of convenience they were separately cultivating the same. He has further recorded finding that there was dispute between the parties over possession of the disputed land which can be settled only by partitioning the same. Inspite of the aforesaid findings, the learned Magistrate initiated the proceeding under section 145 of the Code. Hence this application.

(3.) Mr. Braj Kishore Prasad No. II, learned counsel appearing on behalf of the petitioner contended that it is well settled that in cases where according to both the parties they are in joint possession of subject of dispute, proceeding under section 145 of the Code cannot be initiated, and the same can be initiated only in those cases where one party claims joint possession and the other exclusive possession learned counsel appearing on behalf of the opposite party No.1 could not dispute this proposition. He, however, submitted that from his aforementioned case, it cannot be said that the parties were in joint possession of the subject of dispute. In my view, from these averments in the show cause filed by opposite party No.1 it cannot be inferred that he claimed exclusive possession over the subject of dispute. Merely because one cosharer is cultivating for the sake of convenience some of the lands belonging to the joint family, the same cannot show that he is in exclusive possession thereof. Neither case of partition nor separation has been disclosed by opposite party No.1. He has not come with any plea of ouster. Therefore, it is not possible to hold that according to the case of the opposite party No. 1, he is in exclusive possession of the subject of dispute.