SOHAN MUSHAR Vs. KAILASH SINGH

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure, which for the sake of brevity will be referred to hereinafter as 'the Code,' by the then Additional Sessions Judge, Motihari, for setting aside the order of November 8, 1960, passed, by a 1st class Magistrate of Bettiah, under Section 145 of the Code, declaring only Kailash Singh, one of the opposite party here, to be in possession of the land in dispute.

(2.) The grounds given by the learned Judge, in his letter of reference, for quashing the impugned order, are, first, that the affidavits nave not been considered, and, Secondly; that the Magistrate has confused between 'right to possess,' and, 'actual physical possession', and has not kept in view the principle laid down by a Full Bench of this Court in S.M. Yaqub v. T. N. Basu, AIR 1949 Pat 146 (FB) at p. 162.

(3.) In support of the first ground of the reference, Mr. Purnendu Narayan relied on two decisions of Sahai, J. sitting singly in Jamilur Rahman v. Abdul Aziz, 1960 BLJR 179: (AIR 1960 Pat 240) and Rudra Singh v. Bimla Debi, 1960 BLJR 328: (AIR 1960 Pat 505).