BIBI SOGHRA Vs. EMPEROR

JUDGEMENT

(1.) The second party in a proceeding under Section 145, Criminal P.C., are the petitioners before this Court, The dispute was with regard to four plots Nos. 432, 566, 474 and 1094 of Khata No. 277 in village Sarkanda within the jurisdiction of Govindpur police station in the district of Gaya.

(2.) The trial Court declared possession in favour of the first party who happen to be tenants. The second party, petitioners before this Court are the landlords. After going through various pieces of evidence adduced in the case the Court below came to the conclusion that the possession of the first party was established.

(3.) This order was passed as early as 15-11-1944. The petitioners, however, moved this Court on 15-8-1945 and obtained a Rule The most important point that has been urged by Mr. Rahman is on the question of procedure A proceeding under Section 145 was initiated on the report of a second class Magistrate on 3-7- 1940 and the subject-matter of the dispute was attached, but curiously enough no step seems to have been taken to inquire into the question of possession by the Magistrate till 11-5-1944 when Nago put in an application before the learned Magistrate when another proceeding was drawn up. If I have understood Mr. Rahman's argument aright, his argument is that when a previous proceeding under Section 145 was ponding, the Magistrate had no jurisdiction to initiate a second proceeding under Section 145 with regard to the same subject matter in dispute But this argument is not maintainable if one considers the contents of the petition filed by Nago and the first order in the order-sheet on that petition. The very opening paragraph of Nago's petition says that the aforesaid case is pending for disposal since the last several years and in this period there have been considerable changes in the members of the first party and so it is essential that a fresh proceeding should be started making the persons named below party in this case and the prayer of Nago is that Your Honour would be graciously pleased to start a fresh proceeding after amalgamating the fornfisr two proceedings into one and further be pleased to order for issue of proceedings in the names of the following persons etc. This petition was evidently put up before the Magistrate on 12-5-1944 when he passed the following order: Perused the petition for action under Section 145, Criminal P.C. There is apprehension of breach of the peace Draw up proceedings under Section 145, Criminal V.C., and serve on the parties. The lands are under attachment. The parties to file their documents and written statements on 29-3-44.