BALRAM SINGH Vs. BUDHO DEVI

JUDGEMENT

(1.) This reference under Section 438 of the Code of Criminal Procedure by the learned Third Additional Sessions Judge of Monghyr is directed against the order dated the 29th of April 1963 passed in a proceeding under Section 115 of the Code of Criminal Procedure by a first class Magistrate at Khagaria.

(2.) The subject-matter of the dispute was eleven and a half Dhurs of land of village Bhadas, police station Khagaria, in the district of Monghyr. Budho Devi and others were the first party, whereas, Balram Singh and others were the second party to the proceeding. The learned Magistrate, on a consideration of the affidavits, documents etc., filed before him on behalf of the parties, came to the finding that the first party was in possession over the disputed land on the date of the order. Accordingly, he declared the first party to be in possession.

(3.) It appears that, before the Magistrate, in was contended on behalf of the second party that as they had been forcibly and wrongfully dispossessed within two months next before the date on which the preliminary order was passed the Magistrate should declare them to be in possession under the second proviso to Sub-section (1) of Section 145 of the Code. The preliminary order in the proceeding was passed on the 9th of November 1961. The materials on the record Indicated that the first party occupied the disputed land on the 10th of September, 1961. The learned Magistrate took the view that, as the members of the second party themselves trespassed over the disputed land on the 15th of March, 1961, their dispossession by the members of the first party would not be wrongful. In that view of the matter, he declined to act under the second proviso to Sub-section (4) of Section 145. The learned Additional Sessions Judge, in his letter of reference, has stated that the Magistrate erred in taking the view that the taking of possession by the first party was not wrongful, and, in his opinion, the Magistrate should have declared the possession of the second party.