ABHOYPADA BANERJEE Vs. DHANESH

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure (hereinafter referred to as "the Code") made by the learned Additional Sessions Judge of Singhbhum at Chaibassa, recommending that the order dated the 14th April, 1961, of the learned Magistrate of Saraikella dropping the proceeding under Section 145 of the Code should be set aside.

(2.) Put briefly, the facts are these. The subject matter of dispute was Khata 108, consisting of 26 plots, including Bandh and trees in this Khata in village Bakarpur. On the 27th May, 1960 the police submitted a report for action under Section 144 or Section 145 of the Code against both the parties. On the 30th May, 1960, a proceeding under Section 144 was initiated against both the parties. On the 27th July, 1960, the said proceeding under Section 144, which was a fore-runner of the proceeding under Section 145, was converted into one under Sub-section (1) of Section 145 of the Code. In course of the enquiry, both the parties filed affidavits of their witnesses and also filed documents in support of their respective cases.

(3.) It appears that on the 23rd July, 1933, the first party got delivery of possession through Court over all the plots appertaining to Khata 108. It further appears that in 1945 the second party filed a title suit against the first party for declaration of their title to and recovery of possession over 12 plots, out of the 26 plots in dispute, after relinquishing their claim to the rest. That suit was dismissed on the 31st January, 1947. During the recent survey settlement proceedings the second party are recorded only in respect of plot 63 (which is wrongly mentioned as plot 83), whereas, the first party are recorded in respect of the remaining 25 plots. The first party, however, have applied for correction of the entry regarding plot 63 under Section 83 of the Chotanagpur Tenancy Act.