BABU LAL RAI Vs. DHRUBDEO RAI

JUDGEMENT

(1.) 1. This criminal revision application is directed against the order dated 29 -1 -94, passed by Sri Purshottam Pd. Singh, Executive Magistrate Gopalganj, in case No. (T.R. No. 199/89), whereby he has bifurcated the disputed plot into three portions and declared possession of the first party (the petitioner herein), 2nd Party (O.P. No. 2 herein) and 3rd party (O.P. No. 3 herein) to the extent, of 5 Katha 18 dhurs each in a proceeding under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code").

(2.) This unfortunate litigation between the agnates has had rather a chequered history. It relates to cadastral survey plot which is equivalent to R.S. plot No. 373, Khata No. 58, Village Gauri, police Station Mohammadpur, district Gopalganj, measuring a total area of 17 Katha and 15 Dhurs. Initially, a proceeding under Section 144 of the Code was initiated which was subsequently converted into one under Section 145 of the Code. The same was disposed of by the Executive Magistrate by his order dated 15 -3 -92 whereby possession of the petitioner herein with respect to the entire plot in question was declared. Aggrieved by the said order dated 15 -3 -92 O.P. Nos. 2 and 3 herein had jointly moved the learned Sessions Judge in Criminal Revision No. 102/92/28/92, which was allowed by Judgment 28/92 dated 8 -6 -93 and the entire matter was remitted back to the Executive Magistrate for afresh order in accordance with law. The petitioner herein had moved this Court in Criminal Revision No. 611/93 against the said order dated 8 -6 -93 of the Sessions Judge, which was dismissed by order dt. 22 -9 -93. Pursuant to the aforesaid remand order, the Executive Magistrate passed the impugned order dated 29 -1 -94, whereby he has held that the three parties are in possession of . l/3rd portion each of the land in question according to a family partition and has declared possession in terms of Section 145 (4) of the Code accordingly.

(3.) While assailing the validity of the impugned order, learned Counsel for the petitioner in his persuasive argument has submitted that the impugned order is beyond the scope of Section 145 of the Code. Instead of confining himself to the scope of Section 145 of the the Code, he has taken upon himself the unauthorised duty of determining the title of the lands in question. In other words, in the submission of the learned Counsel, the impugned order amounts to determination of the question of title and possession of the parties which is completely alien to the scope of Section 145 of the Code. Learned Counsel for the petitioner while tracing the title and history of the land in question submitted that the trial Court has unauthorisedly held that the same belonged to the joint family instead of Sundar Mani Rai