MOHESHWAR NAIK Vs. RAGHUNATH PAL
HIGH COURT OF CALCUTTA
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K.C.SEN, J. -
(1.) THIS Rule is directed against an order passed by Shri A.K. Dutta, Magistrate, 1st class, Jhargram, whereby he decided and declared that the members of the first party are in possession of the disputed lands and that they are entitled to retain possession until evicted or ousted in due course of law. Any disturbance to the first party's possession was ordered to be strictly forbidden.
(2.) THE first party started proceeding under Section 144 Cr.P.C. in the first instance, apprehending breach of peace. Subsequently under an order of the learned Magistrate it was converted into a proceeding under Section 145. The allegation of the first party was that the disputed lands were held originally by one Bipin as Bhalluk, on whose death, the first party, opposite party No. 1 Raghunath Paul held the same as Bhalluk and as -such he and his brothers Mangobinda and Kailash and Mangobinda's son, Nalini were in actual possession of the said lands. It was also their case that although Raghunath Paul was discharged from his service as a Bhalluk, the lands continued to be in possession of himself and his brothers and that although the disputed ands had been resumed and made khas by the State of West Bengal, the Officers of the Land Reforms Department did not settle the same to them in spite of the orders passed to. settle the lands in their favour.
The case of the 2nd parties, who are the petitioners before me, was that the disputed lands were original held by the first party opposite party No. 1 Raghunath Paul in chakran right on account of services rendered by him as a Bhalluk. Subsequently he was discharged from service and the lands were resumed and made khas by the Govt, of West Bengal and that thereafter the Govt. through the Officers of the Land Reforms Department settled the land's with the petitioners as Utbandi tenants.
(3.) THE contention of the second party was negatived by the learned Magistrate and in this Rule, Mrs, Diptikana Bose, the learned Counsel appearing on behalf of the second party petitioners, has urged that the order of the learned Magistrate is erroneous in law, firstly, because he examined two independent witnesses for. deciding the case in contravention of the clear provisions of proviso to Sub -section (4) of Section 145 and to Sub -section (9) of that section. Her second point is that although in a proceeding under Section 145 Cr.P.C. no restraint order can be passed, the learned Magistrate erroneously in a proceeding under Section 145 passed such an order, which is not sustainable in law. Mer third point is that the learned Magistrate referred to a letter dated the 29th February 1960 addressed by the Junior Land Reforms Officer to the Additional Collector of Midnapore for his decision, without that letter being proved according to Jaw. Her fourth submission is that the learned Magistrate misdirected himself by not taking into consideration the affidavit filed by the Junior Land Reforms Officer which' on the face of it would go to show that the contention of the first party was definitely wrong.;
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