KALU Vs. CHAINA

JUDGEMENT

(1.) THIS is a reference by the learned Civil & Additional Sessions Judge, Merta, recommending that an order passed by the first Class Magistrate Nagaur directing the stay of a criminal case under sec. 379 of the Indian Penal Code instituted by the State against opposite parties Harsukh, Chaina and others on a report by the petitioner Kalu, pending the decision of a civil suit filed by Harsukh against Kalu, be set aside.

(2.) THE material fact which have led up to this reference may shortly be stated as follows: It appears that the opposite party Harsukh purchased bapi rights in respect of a certain field from one Bhika who was its bapi holder. It is admitted that Bhika had mortgaged the same field to Kalu and some others before the transfer in favour of Harsukh took place. Harsukh's contention was that he entered into possession of the field in question after Kalu and others had surrendered possession thereof although latter changed their minds subsequently and sought to disturb his possession. On 27th July, 1949 Harsukh therefore, filed a suit in the court of the Munsif, Nagaur, against the petitioner Kalu and others for the grant of perpetual injunction restraining them from preventing the former from cultivating the said field and interfering with his possession in respect of it. On 17th October, 1949 Kalu lodged a report at the police thana Bhawanda to the effect that Harsukh and others had stolen his ten cart loads of Chipta which were lying in the field in question. THE police investigated the case and challaned Harsukh and others in the court of the Sub-Divisional Magistrate, Nagaur for trial of an offence under sec. 379 of the Indian Penal Code. THE learned First Class Magistrate Nagaur, to whom the case had meanwhile been transferred, then proceeded to stay the criminal case and ordered that it be consigned to the records until the civil suit field by Harsukh against the petitioner Kalu and others was decided. THE petitioner went in revision from that order to the learned Civil and Additional Sessions Judge, Merta who has made the present reference.