AB RASHID Vs. BEGA

JUDGEMENT

(1.) THIS reference is made under the Code of Criminal procedure (hereinafter called the Code) by learned sessions Judge, Bhadarwah by his order dated August 25, 1980 in Criminal Revision No. 33 of 1979 recommending to quash the order passed by Sub -Divisional Magistrate, Ramban (hereinafter called the S. D. M) on December 3, 1979 in proceedings under section 145 of the Code initiated at the instance of the petitioner -Abdul Rashid and respondent No ;.5 against respondents 1 to 4.

(2.) ON the application filed under section 145 of the Code by the present petitioner - Abdul Rashid & Respondent No; 5 Ghulam Qadir Bhat against respondents 1 to 4 alleging dispute regarding agricultural land measuring 42 kanals and one marla under survey Nos; 6, 8, 48. 49, 50 and 51 situated in village Chander kot apprehending breach of peace and prayed for the attachment of the subject of dispute. The Judicial Magistrate 1st Class Ramban before whom the proceedings were initially commenced drawn the preliminary order on March 25. 1970 and directed being the case of emergency for the attachment of the property & calling upon the parties to put in their respective claims, affidavits, etc., as envisaged under section 145 (1) of the Code. During the pendency of the proceedings before Judicial Magistrate 1st Class, Ramban after the parties were directed to appear before him due to amendment introduced in the Code, the proceedings were transferred to S. D. M. Ramban on August 5, 1975 who concluded the proceedings by order dated December 3, 1979 holding respondent Haji Mohammad Mussa in actual & physical possession of the land measuring 24 kanals and 9 marlas and rest of the land in possession of the petitioner and respondent No; 5 directed the Superdar to hand over out of the attached land measuring 24 kanals and 9 marlas to respondent Haji Mohammad Mussa. The petitioner herein being aggrieved against the said order filed a revision under the Code before learned Sessions Judge, Bhadarwah, who found that the order passed by the S D M. was per -verse the record and not in accordance with law, thus recommended by way of this case for sitting aside the order passed by S.D.M. Ramban by his order dated August 25, 1980.

(3.) HEARD learned counsel for the respective parties Learned counsel for the petitioner submitted supporting the reference that the findings arrived at by the learned Sessions Judge are in accordance with law and are based on cogent reasons, the reference deserves to be accepted & the order passed by the learned S. D. M is liable to be set aside. Learned counsel for the respondents 1 to 4 opposing the reference submitted that the order passed by learned S. D M. is based on record and there being a definite finding about possession in favour of the respondent -Haji Mohammad Muss, no interference is required in the order passed by the Magistrate concerned. In addition to the arguments, learned counsel for the respondents also attacked the reference on the ground that the revision was not competent before the learned Sessions Judge, as the same should have been filed before the District Magistrate rather than before the learned Sessions Judge.