BHIKHALI TEWARY Vs. ACHAIBAR KUER

JUDGEMENT

(1.) This is an application by the second party against an order of 30 November 1939, making absolute against them an order under Section 144, Criminal P.C., in respect of plots 2 and 3 of village Gaighat. The first party are tenants of village Gaighat and are in possession of plots 11, 12 and 13 immediately south and contiguous to plots 2 and 3. The second party are tenants of village Nainijore which is south of Gaighat. The proceeding commenced on a police report which stated that the second party were in possession. The disputed plots had recently emerged from the Ganges and it is the case of the first party that there has been a re-formation in situ of land which belongs to them. The second party, on the other hand, relied on an amaldustak granted to them by the proprietor of the land about two months before the date of the police report. The learned Magistrate who initiated the proceedings came to the conclusion that the land was an accretion to the land of the first party and, accordingly decided against the second party. In his order he stated that the second party claimed the land as an accretion to their village Nainijore. The second party moved the District Magistrate who has pointed out that the village of Nainijore is south of Gaighat and nowhere it is contiguous to the disputed plots.

(2.) In revision it is contended that the second party are interested in village Rudrapur which is adjacent to plot No. 3, one of the disputed plots, and that this circumstance has not been considered by the Courts below. Now, the second party had an opportunity of showing cause against the original order before the Magistrate and also an opportunity of attacking the Magistrate's order before the District Magistrate. On neither occasion did they claim these lands by reason of any interest that they may have had in Rudrapur and there is nothing in the record which enables me to hold that they in fact have any interest in Rudrapur. The learned District Magistrate observed in his judgment that the Subdivisional Magistrate did not trust the police report. If the Subdivisional Magistrate has ever said that he distrusted the police report certainly it does not appear from his judgment. That judgment contains no reference to the police report at all.

(3.) However, the finding given by the Courts below that the villagers of Nainijore have no claim to this plot is supported by circumstances and I see no reason to interfere in revision with an order which has already expired. Should there be any further dispute with regard to the possession of these lands the Subdivisional Magistrate will bear in mind the rulings of this Court that in the case of bona fide disputes with regard to possession of land the proper method of dealing with the dispute is by a proceeding under Section 145, Criminal P.C., and not by a proceeding under Section 144, The rule is discharged.