DULARE KUMAR Vs. SUBANS KUMAR

JUDGEMENT

(1.) The learned Additional Sessions Judge of Monghyr has made a reference to this Court recommending that the order passed by the Sub-Divisional Magistrate of Begusarai in a proceeding under Section 145, Criminal P.C. is liable to be set aside as being contrary to law.

(2.) The letter of reference contains a very careful analysis of the facts that led to the dispute and he has very clearly formulated the points on which the order of the Magistrate can be successfully challenged. I need do no more than give a very brief outline of the facts of the case in order to clearly bring out the points in dispute. The disputed properties consist of three classes of lands. They appertain to 15 gandas proprietary interest in tauzi No. 940 in village Fatehpur. They consist of 4 bighas 9 kathas 10 dhurs of bakasht land, 15 kathas 16 dhurs of ghairmazrua khas lands and 3 bighas 13 kathas 14 dhurs of raiyati lands. Admittedly the disputed property belonged to some members of the 1 party and Dularo, who is a member of the 2nd party, from the time of their ancestors. It appears that sometime in 1917 these properties were sold in execution of a decree in title execution case No. 147 of 1917 and was purchased by one Achambhit Thakur, admittedly a farzidar of Mathura Jha. Achambhit executed a deed of release in favour of Mathura Jha on 1-7-1926, and by two sale deeds dated 20-3-1934 and 6-1-1939, Mathura Jha sold them to Dulare. That is how Dulare claims the property to be his and also claims to have been in possession of himself and before him of his vendors since dakhaldehani which is proved (Ex-S) in the case. Out of the members of the 1 party, five people belonged to Dalare's family being descendants of Teka Kumar, and it is not clear on record what constituted the interest of the other three who were included as members of the 1 party. This proceeding was first started on 11-6-1943, and the learned Magistrate by his order dropped the proceeding in relation to the jot lands and with regard to the rest, he expressed an opinion that the evidence on both sides was so equally balanced that he could not come to any finding and passed an order of attachment of the property under Section 146, Criminal P.C. Against this order, a criminal revision was filed in this Court, and the matter was sent back to the Magistrate with a direction that if necessary, he should allow the parties to adduce further evidence and should try to come to a finding as to which side is in possession.

(3.) On remand, the learned Magistrate recorded further evidence adduced by the parties and passed an order declaring the members of the 1 party to be in possession. The 2nd party moved the Additional Sessions Judge for making a reference under Section 438, Criminal P.C., and accordingly a reference has been made.