BINDESHWARI SINGH Vs. RAGHUNANDAN MAHTO

JUDGEMENT

(1.) This is an application in revision against an order of the District Magistrate of Patna refusing to interfere with an order of the Sub-Divisional Magistrate of Bihar passed against the petitioners under Section 144, Criminal P.C. The petitioners case is that they took a settlement of a one-third share of the opposite party in Khatan No. 301 which had been brought to sale in execution of a rent decree obtained by the landlords. The auction-purchaser from whom the petitioners took their settlement took out dakhal-dehani on 19 May 1936. There was then a proceeding under Section 144 of the Criminal P.C., which ended adversely to the auction-purchaser, the Magistrate holding that his proper remedy was a partition suit.

(2.) There was accordingly a partition suit in 1937, and this ended in the usual decree with a dakhal-dehani on 8 May 1938. The petitioners claim to have taken settlement from the auction- purchaser, after the second dakhal-dehani, on 12 July 1938. In December 1938 there was a proceeding under Section 144 between the petitioners and the tenants, the opposite party, and this ended in favour of the opposite party because as the Magistrate said in his order of 4 January, 1939, a Sub-Deputy Magistrate who had been sent to make the local inquiry came to the conclusion that possession was with the old tenants. The matter was taken up in revision to the District Magistrate who declined to interfere on the ground that the period of two months had expired.

(3.) He observed, however, that it is desirable to determine the question of actual possession in a proceeding under Section 145, Criminal P.C., if again a dispute arises and breach of the peace is apprehended. Notwithstanding this, fresh proceedings were started in November last under Section 144 and these were concluded on 15 December, when the Sub-Divisional Magistrate made the rule under that Section absolute against the petitioners and discharged it as against the opposite party; and he did this on the ground that in the previous proceeding under Section 144 the opposite party had been found to be in possession, that the petitioners could not have come into possession since and that it only appears that since the learned District Magistrate observed in appeal that it may be desirable to decide the matter under Section 145, Criminal P.O., that the first party (the petitioners in this Court) have started fresh attempts to falsely claim actual possession in the lands.