ARAN SARDAR Vs. HARA SUNDAR MAJUMDAR

JUDGEMENT

(1.) We are invited in this Rule, which was obtained under Section 107 of the Government of India Act, to quash certain proceedings initiated by the Sub-Divisional Magistrate of Manikganj under Section 145, Criminal Procedure Code.

(2.) The question in controversy lies within a very narrow compass. There was a proceeding under Section 145, Criminal Procedure Code, between the first party and persons now represented by the second party which resulted in an order being made in favour of the first party on the 29 of August 1919 declaring such party to be entitled to retain possession until evicted in due course of law and forbidding all disturbance of such possession until such eviction. The principal person of the second party then was one U.N. Roy. The interest of U.N. Roy has now passed to one Hara Sundar Mazumdar and, he is now the principal person among the second party. It appears that after Hara Sundar acquired his interest he began to disturb the possession of the first party, which was maintained by the order of the 29 of August 1919. There is no dispute as to the identity of the parties. There was a question whether the present -dispute related to the same land which was the subject-matter of dispute in the proceedings mentioned before and the Magistrate deputed a Kanungoa to make a local enquiry. The result of the enquiry, shortly stated, was that the lands in the present dispute were included within the lands which formed the subject-matter of the previous dispute. The learned Magistrate thereupon made on order on the 18 May 1922 which runs as follows: I am satisfied from the Kanungoe's report that the eastern boundary of the lands at present in dispute is not identical with that which was the boundary of the lands in the former 145, Criminal Procedure Code. Nevertheless, the lands at present in dispute form part of the lands adjudged under the 145 proceedings, but there is evidence of a bona fide dispute as to actual possession now. Therefore, as I consider a breach of the peace to be imminent, I hereby attach the whole of the lands included in Sheet. No. 1, Purulia, under Section 145(4), Criminal Procedure Code, Draw up new proceedings under Section 145, parties to produce evidence as to possession on 6 June 1922.

(3.) The identity of the parties and the lands being established it was clearly the duty of the Magistrate to see that the possession of the first party adjudged under the previous order was not disturbed. That order is binding on the parties and the unsuccessful party cannot be allowed to disregard it and disturb the possession of the other party without having recourse to law. It is not the proper course for the Magistrate to initiate fresh proceedings under Section 145 of the Criminal Procedure Code for maintaining the peace.