KHARTAR SAO Vs. PRADIP SINGH

JUDGEMENT

(1.) This is a reference made by the Sessions Judge of Bhagalpur in respect of an order passed by the learned Munsiff Magistrate of Banka in a proceeding under Section 145 of the Code of Criminal Procedure. In the view which I have taken, it is unnecessary to state the facts. The facts are clearly stated in the letter of reference of the learned Sessions Judge. The two main grounds on which the learned Sessions Judge has made this reference are: (1) that the learned Munsiff Magistrate failed to appreciate the real question he had to determine in a proceeding under Section 145, Code of Criminal procedure; and (2) that the proceeding was defective, inasmuch as it gave no details of the subject-matter of dispute. In my opinion, both these grounds are valid and vitiate the order passed by the learned Munsiff Magistrate.

(2.) On the question of possession, the learned Munsiff Magistrate expressed himself as follows:

(3.) I am also satisfied that the proceeding was materially defective. In his letter of reference, the learned Sessions Judge has referred to various defects. It was not made clear as to whether the dispute related to the lands of Plot No. 1902, or to the right to collect 'mahua' flowers or fruits from some trees standing on the plot. It was not made clear whether the dispute related to the entire area of Plot No. 1902, or to a part of the area only. If the dispute related to the right to collect 'Mahua' flowers or fruits, it was not made clear whether the dispute was about such right in respect of all the trees or some of the trees only of Plot No. 1902. The learned Munsiff Magistrate gave certain boundaries of the subject-matter of dispute. The learned Sessions Judge has noted that it was conceded before him that those boundaries were the boundaries of the entire area of 167 acres and odd comprised within Plot No. 1902. Mr. S.C. Misra, appearing for the opposite party before me, has stated that the boundaries were not the boundaries of the entire 167 acres and odd, but were the boundaries of the lands which were assigned in favour of Mr. Misra's clients by the settlees of the tenure-holder. It is not possible for me, on the materials before me, to say whether the boundaries are correct boundaries of the subject-matter of dispute. It has been stated before me that the dispute related to the entire area of Plot No. 1902. The learned Munsiff Magistrate seemed to think that the dispute related only to 101 acres & odd out of the entire area of Plot No. 1902. These are defects which are vital, and the final order passed in the proceedingj can have no meaning, unless it is known for certain what is the subject of dispute in respect of which the final order has been passed.