NANDKESHWAR PRASAD SAHI Vs. SITA SARAN SAHI

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Muzaffarpur in respect of an order under Section 146, Criminal P. C.

(2.) The dispute was between parties, one of which claimed exclusive possession over the major portion of the land in controversy and the other of which claimed to be entitled to joint possession along with the first party of the entire land. The learned Sessions Judge has recommended that the order passed by the Magistrate under Section 146 to this Court be set aside, relying upon the decision in Sham Lal V/s. Rajendra Lal A.I.R. 1920 Pat. 513 which is substantially in pari materia.

(3.) The matter first came before a single Judge who referred it to a Division Bench so that the decision relied upon might be considered. It was the decision of a single Judge and appears to be based upon a similar decision of another single Judge in Jogeshwar Das V/s. Emperor A.I.R. 1920 Pat. 835 who perhaps failed to appreciate that the decisions on which he relied, are not really to the purpose. The two decisions in question are based upon two cases decided by the Calcutta High Court: Tarujan Bibee V/s. Asamuddi Bepari 4 C.W.N. 426 and Kristo Alhadini Dasi v. Radha Shyam Panday 7 C.W.N. 118. In Tarujan Bibi V/s. Asamuddi Bepari 4 C.W.N. 426 the Magistrate had found that both parties were entitled to joint possession of the land in dispute; but he directed that one of them should hold actual possession until evicted by due course of law. The Court pointed out that the order that only one of the parties should be maintained in possession was not cased on any finding that he and he alone had actual possession when cognizance of the matter in dispute was taken under Section 145. In his explanation to the Court the Magistrate said that both parties were in joint possession, so that it was manifest that the order evicting one of them under Section 145 in the absence of a finding that his joint possession had been obtained by the recent use of force, could not be maintained.