KARIMULLAH KHAN Vs. CHAMPA KHOJWA

JUDGEMENT

(1.) This application by Karimullah Khan and three others is directed against the final order dated the 24th September, 1974, passed by the Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). In the said proceeding the petitioners were the members of the second party, whereas Champa Khojwa (Opposite party No. 1), daughter of Mobarak Mian, was the sole member of the first party. Opposite party Nos. 2 to 6 were the members of the third party. Opposite Party Nos. 7 to 9 were the members of the fourth party in the said proceeding. It may be noted that Gopaljee Prasad (opposite party No. 8) died as it appears from the order dated the 23rd August, 1976, of this Court in his place his heirs were put on the record.

(2.) In the proceeding the dispute relates to land measuring 12 bighas 5 kathas and 7 dhurs comprised under various plots in Khata Nos. 154, 269, 230/234, 271 and 272 situated in two different villages, namely, Mathauli and Hatsaria in the District of West Champaran. It may be mentioned that initially a proceeding under Section 144 of the Code was initiated at the instance of the first party against the members of the third party by order dated the 11th June, 1968. Before initiating the proceeding under Section 144 of the Code, the Magistrate called for a police report and the police had submitted the report on the 10th June, 1968. During the 144 proceeding, it appears that the members of the second party also were impleaded. Later on the 18th September, 1968, the said proceeding was converted into one under Section 145 of the Code when the members of the fourth party were impleaded. The members of all the parties filed written statements. The first party claimed her exclusive possession over the disputed lands whereas the second party also claimed exclusive possession. Similarly, members of the third party claimed their exclusive possession whereas members of the fourth party claimed possession of 9 bighas and odd out of the disputed land to be in their possession by virtue of sale deeds executed by the members of the third party in favour of them during the pendency of 145 proceeding. All the members of the different parties to the proceeding filed affidavits and documents in support of their respective cases of possession. The Magistrate in the impugned order after considering the materials on the record including the affidavits and the documents found that the members of the third party were in possession of the disputed land even prior to the starting of 144 proceeding and accordingly declared their possession under Section 145 of the Code over the disputed land holding that they were entitled to retain the possession until they were evicted in due course of law and also any interference in such possession was strictly forbidden. He further declared members of the fourth party who had purchased the land during the pendency of 145 proceeding to be deemed to be in possession only through their vendors and as such no separate order was necessary.

(3.) Learned Counsel appearing on behalf of the petitioners has assailed the impugned order and has raised following points for consideration by this Court: