FAKIR CHAND MONDAL Vs. MADAR MONDAL

JUDGEMENT

(1.) In my opinion this reference must be rejected.

(2.) It appears that a Magistrate of the First Class was trying a proceeding under Section 145, Criminal P.C. and ho came to the conclusion that, the second party was shown to be in possession. The learned Sessions Judge of Khulna has under Section 435, Criminal P.C., called for the record and has exercised his power under Section 438 in reporting the case to the High Court. He reports the case "with the recommendation that the order finding that the second party was in possession of the land and prohibiting interference with such possession should be set aside . Ho suggests that the true finding in the case would have been a finding that the first party was in possession. He recommends that the Magistrate's order be vacated, but he does not appear to recommend that this Court should declare the first party to be in possession with the usual reliefs. He suggests that the order should simply be vacated and that, thereupon if there be any reason still to apprehend a breach of the peace, the proceeding should either be begun all over again or the Magistrate should take action under Section 107, Criminal P.C. I may say that the judgment of the Magistrate is dated in April of this year and the reference by the Sessions Judge is dated in June. We are now in the middle of December.

(3.) When I come to look at the judgment of the Magistrate, it appears to me that there is one criticism which cannot be made against it. It is a judgment which confines itself entirely to the question of fact as to whether the first party or the second party was in actual possession, and the Magistrate is most careful to deal in no way with complicated questions of title nor is he in his judgment mixing up the question of the right to possession with the question of actual possession. It seems that the first party claimed that the land until about a year before the proceedings belonged to one Patua Bewa. That is agreed by all the parties. The first party say that Kushilal used to live with Patua Bewa and looked after all her affairs, ploughed her lands and so on and that after her death he remained in possession, and the second party say that they are the heirs and reversioners of Patua Bewa, that they were looking after her property all along and that on her death they succeeded to the possession of the property.