NAKUL SINGH Vs. ALI HUSSAIN

JUDGEMENT

(1.) This application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred to as the Code) is directed against order dated 24.8.1998 of the Sessions Judge, Giridih, in Criminal Revision No. 12 of 1997 reversing the order of an Executive Magistrate made in a proceeding under Section 145 of the said Code and remitting the proceeding for making a fresh order after giving both the parties an opportunity of adducing public documents in support of their respective claims.

(2.) Brief facts of the case are that on an application having been filed by the present petitioners, the Executive Magistrate of Giridih drew a proceeding under Section 145 of the Code on being satisfied that there was an apprehension of breach of the peace due to dispute in respect of 85 decimals of land of plot No. 287 of Khata No. 135 situate at village Pokharna within Pittand Police Station in the district of Giridih. In the said proceeding the petitioners were members of the first party, whereas the opposite parties were arrayed as members of the second party disputing the title and possession of the members of the first party.

(3.) The case of the petitioners first party was that the land in question was their raiyati land recorded in the survey khatihan in the names of Beni Singh and Paduman Singh under Khewat No. 28/2 in favour of Jitu Singh. The petitioners claim to be the descendants of the recorded tenants Beni Singh and Paduman Singh. They stated that the land in question was all al6ng in their possession. They had grown paddy over the same and that the members of the second party tried to disturb the possession. On the other hand, the case of the second party-opposite party was that one Harakh Ram was a tenure hold entitled to receive rent from the tenants of the khata No. 135. When rent in respect of the said holding fell in arrear Rent Suit No. 556/37-38 was instituted and a decree obtained. In execution of the said rent decree in execution case No. 234/37-38, the tenure-holder got the entire holding sold through Court and purchased the holding himself and came in possession. He settled the land of plot No. 287 with one Puran Gope on the basis of a registered patta dated 19.4.1939 and put the settlee in possession. The settlement was taken for and on behalf of joint family consisting of Puran Gope and his two brothers Kartik Gope and Rijho Gope. Puran Gope died issueless; Rijho also died leaving behind a son Bideshi Gope. It was further case of the opposite parties-second party that Kartik Gope and Bideshi Gope sold the disputed land of plot No. 287 to one Kurban Mian of village Kharpoka within the same police station on the basis of registered sale-deed dated 24.8.1978 and . put him in possession. On his part, the said Kurban Mian gifted the disputed land to the opposite parties-second party, who are his nephews (sister's sons) by registered deed of gift dated 02.3.1988. According to them they were in actual physical possession of the disputed land ever since 1978 on behalf of their donor Kurban Mian.