BHOLA KUMAR Vs. BHUBNESHWAR SINGH

JUDGEMENT

(1.) This is a reference made by the learned Additional District Magistrate of Monghyr under Section 438 of the Code of Criminal Procedure recommending that the order passed by the learned Sub-Divisional Magistrate, Khagaria, dated the 20th September, 1965, be set aside. The facts of the case, briefly stated, are as follows:-

(2.) In village Rajdhan Karari, police station Parbatta in the district of Monghyr, there is a big survey plot of land bearing No. 77 extending over more than 100 bighas. In early thirteen the ex-landlord, Raj Banaili, in execution of a rent decree, purchased these lands and a sarbasta plot No. 11 comprising an area of 50 bighas was carved out. On a police report dated the 31st May, 1965, a proceeding under Section 144 of the Code of Criminal Procedure was started in respect of these 50 bighas of land. A pleader Commissioner was then deputed on 3-7-65 by the Court to take measurement and he filed his report and a map prepared by him on 29-7-65. On 2-8-65 this proceeding under Section 144 of the Code of Criminal Procedure was converted into one under Section 145 of the Code and it was in respect of the disputed two blocks. The learned pleader Commissioner in his map showed different blocks I to XI within this area. The first party consists of two sets, one represented by Bhola Kumar and Chandramani Kumar. They claim 6 bighas 10 kathas and 4 dhurs of land covered by blocks Nos. 2 to 7 of the Commissioner's map. The other set of the first party, namely, Bishundeo Paswan and Chhotelal Paswan, claim amongst themselves blocks Nos. 8 and 9 of the Commissioner's map. The total area of these two blocks 8 and 9 comes to 7 kathas and 9 dhurs. The learned pleader Commissioner did this measurement on the basis of one lagga being of 61/2 cubits. This second party Bhubneshwar Singh and others claim the entire disputed land measuring 6 bighas 17 kathas 13 dhurs, extending over blocks Nos. 2 to 9.

(3.) The case of the first party was that in the year 1933 they had taken a settlement of 40 bighas of land from Raj Banaili. This settlement was done on the basis of a receipt. According to them, the western 10 bighas of this block of 50 bighas had been used for the settlement of displaced persons from Binda Diara whose lands had been diluviated. It may be mentioned that block No. 1 has been shown in the map extending on the west up to dock No. 10 and on the south to the boundary of village Sirnia. The eastern boundary of his block is also not disputed. The dispute is really concerning the northern boundary. Admittedly, Eklal Singh and others have got their lands on the north and the case of the first party was that their lands extended on the north upto the land of Eklal Singh, meaning thereby that the disputed blocks Nos. 2 to 7 had also been incorporated in their settlement of 40 bighas. As a matter of fact, there was no dispute for block No. 1, which covers an area of 36 bighas 9 kathas 12 dhurs. The area of block No. 10 to the west of block No. 1 is 3 bighas 8 kathas and 4 dhurs. The case of the second party was that the first party had taken settlement of blocks Nos. 1 and 10 because their total area would come to 39 bighas 17 kathas and 16 dhurs or roughly speaking 40 bighas. Bhola Kumar and Chandramani Kumar further claimed blocks 8 and 9. They challenged the correctness of the report and the map prepared by the learned pleader Commissioner. They got the lands measured by an Amin who filed his report and map along with his affidavit.