LAWS(PVC)-1927-1-122

LOKE NATH ROY Vs. BAZLAL GANI PATARI

Decided On January 04, 1927
LOKE NATH ROY Appellant
V/S
BAZLAL GANI PATARI Respondents

JUDGEMENT

(1.) In these proceedings under Section 145, Criminal P.C., there were six parties the first three being the landlords (the first party holding one anna share, the second party three annas share and the third party a twelve annas share in the land in dispute). The fourth party claims to have executed a kabuliyat in respect of the land in dispute in favour of the second and third parties and is now holding over the term of the lease having expired in 1330. The fifth party is the Chittagong Company which claims to hold possession of a portion of the land where it repairs its launches, and sometimes cuts earth and erects a bamboo jetty fencing when the river rises. The sixth party does not claim any title but says he took a verbal bandobust from the maliks. The learned Deputy Magistrate went thoroughly into the evidence and found that none of the parties had been able to produce sufficient evidence of possession within the meaning of Section 145, Criminal P.C., and therefore passed an order under Section 146, Criminal P.C., attaching the land in dispute.

(2.) This rule was obtained by the first party on the ground that upon the findings arrived at by the Magistrate, he should have been held to be in possession and that the order under Section 146 was without jurisdiction. The second and the third parties, who were the joint landlords with the first party, have not filed any separate application disputing the findings of the Magistrate; but ad the hearing of the rule they have expressed their intention not to object to the rule being made absolute if the first party agreed to treat them as co-sharer landlords of the land in dispute. The first party has said that he has no objection if the joint possession of all the landlords is declared in the land. The real dispute, therefore, is between the landlords on one side and the other parties who claims possession of the land either on settlement from the landlords or by adverse possession on the other. Applications objecting to the order passad by the Magistrate have been filed on behalf of the fourth and fifth parties. Rules have not been issued upon these applications but it is ordered that they should be heard along with the present rule.

(3.) We have heard all the parties who have appeared before us except the sixth party who is not represented before us by any pleader and we are of opinion that on the findings arrived at by the Deputy Magistrate the order under Section 146, Criminal P.C., must be held to be bad in law. The position is this: The Magistrate has found with reference to the claim of the fourth, fifth and the sixth parties that they were not in possession. His finding is that the land is fallow and lowlying and during the rainy season covered with water. As happens to all fallow lands people who have any occasion to use them and especially the neighbours use them not with an idea of exercising any act of possession but simply for the sake of convenience. Such being the state of the land, the learned Magistrate has found that the acts which the fourth, fifth and the sixth parties have claimed to have done over it are not in assertion of any title or possession and are not therefore sufficient evidence of possession within the meaning of the section. With this finding we do not disagree.