SHAHABAJ MANDAL Vs. BHAJAHARI NATH

JUDGEMENT

(1.) This Rule arises out of certain proceedings instituted under the provisions of Section 145, Criminal Procedure Code. These proceedings refer to a tank known as Mirsagar and to a dwelling house which, we are informed, is now more or less dilapidated. It appears that in execution of a decree obtained against the predecessor of the petitioners before us, who were the, first party to the proceedings under Section 145, these properties and other properties were sold, and were purchased by the members of the second party who are the opposite parties in this Rule. It has then been found by the Trial Magistrate that on the 17 November 1918 the auction-purchasers obtained possession of the tank through the Civil Court. That possession was taken in the lifetime of the judgment-debtor, who is said to have died some five days after the delivery of possession.

(2.) It has next been found that the auction-purchaser took possession of the residential house on the 16 May 1920. In the execution proceedings terminating in the delivery of possession of the house the petitioners Nos. 1 and 2, the son and widow of the original judgment-debtor, were impleaded as parties. The Section 145 proceedings were instituted on the 22nd January 1921. The Magistrate's finding on the evidence is that, notwithstanding the delivery of possession taken on the occasions which we have set ont, the members of the first party have continued all along to be in possession and, therefore, we e in actual possession on the day on which the Section 145 proceedings were instituted.

(3.) Relying, however, on the decision of this Court in Atul Hazra V/s. Uma Charan Changdar 33 Ind. Cas. 822 : 20 C.W.N. 796 : 17 Cr. L.J. 182 : 23 C.L.J. 555, the learned Trying Magistrate has made his final order in favour of the second party, and the question before us is whether that order, on the facts and circumstances of the present case, can be supported. As we have already pointed out, the heirs and representatives of the original judgment-debtor have been in possession from the date of his death sometime soon after the 17 November 1918. Their possession from that date onwards to the 22 January, 1921, in our opinion, should have been regarded as adverse to the auction-purchaser. In that view it follows that, in so far as the tank is concerned, the order made in favour of the second party cannot be supported.