NGANGOM TOMBA SINGH AND ORS. Vs. SRI MAIBAM IBOTON SINGH AND ANR.
LAWS(GAU)-1970-6-8
HIGH COURT OF GAUHATI
Decided on June 08,1970

Ngangom Tomba Singh And Ors. Appellant
VERSUS
Sri Maibam Iboton Singh And Anr. Respondents

JUDGEMENT

R.S. Bindra, J.C. - (1.) BY order dated 28th February, 1969 the Sub -divisional Magistrate, Bishenpur, held, in a proceeding under Section 145, Cr. P. C., that the first party, M. Iboton Singh, Chairman of Potsangbam Collective Farming Co -operative Society (proposed), was in actual and physical possession of the land in dispute, measuring about 20 pans, and so was entitled to retain that possession until ousted in due course of law. The second party comprising of nine persons felt aggrieved and so went in revision to the Court of the Sessions Judge, who, by his order dated 24th of October, 1969, made a reference to this Court recommending that the order of the Sub -divisional Magistrate should be set aside and instead the second party should be declared to be in possession of the land in dispute on the date of the preliminary order, which was made on 13 -11 -1968.
(2.) THE correctness or otherwise of the recommendation made by the learned Sessions Judge was hotly debated in this Court by the parties' counsel. After analysing those arguments and going through the material on record, I have come to the conclusion that the reference should be declined and the order of the Sub -divisional Magistrate should be maintained. The first party had filed five affidavits and relied upon 13 documents in support of his claim that it was he and the members of his proposed Co -operative Society who had been in cultivating possession of the land in dispute for a period of 10 years before he moved the Sub -divisional Magistrate on 8 -11 -1968, for restraining the second party from interfering with his possession, under Section 144, Cr. P. C. The second party, the petitioners herein, also relied upon 5 affidavits besides a certified copy of an order dated 20th September, 1966 made by the Director of Settlement and Land Records in Second Appeal No. 76 of 1966 to buttress their claim of 'possession over the land. In the opinion of the trial Court, the affidavits put in by the first party constituted dependable piece of evidence to support the contention of that party. The learned Sessions Judge however differed from that finding of the Sub -divisional Magistrate solely, if I may say so, on the basis that the order dated 20th September, 1966 made in Second Appeal Case No. 76 of 1966 had not been taken into consideration by him (Sub -divisional Magistrate). A copy of that order is marked Ext. D/1. I have gone through it twice over, It shows that the claim of M. Iboton Singh, the first party, that he had been in possession of the land in dispute for a long time and so was entitled to get his name entered in the revenue records was rejected. The decision in that appeal was founded on the local enquiry held on 19 -11 -1965 ' by the Assistant Settlement and Survey Officer. However, the preliminary order in the present case was passed on 13 -11 -1968. Therefore, the situation that prevailed on 19 -11 -1965 could have not much relevancy by the date of the preliminary order, which was passed more than three years after the local enquiry was held, for determining who out of the two parties was in possession of the land by the latter date. Therefore, the learned Sessions Judge, I may observe, was not correct in jettisoning the case of the first party on the only ground that he was not in possession of the land on 19 -11 -1965. It looks obvious that he gave undue importance to that document. It anything, that document shows that even in 1965 the first party had been laying claim to possession over the land in dispute.
(3.) ONCE we consign the copy Ext. D/1 to oblivion, we are left with the written statements of the parties, the two sets of 5 affidavits filed by each one of them, and the 13 documents relied upon by the first party. The learned Sub -divisional Magistrate placed reliance on the affidavits of the first party in preference of those of the second party. After critical examination of those affidavits I have no hesitation in conceding that it looks practically difficult to place one set on a pedestal higher than that of the other. However, there is one feature of the affidavits put in by the first party which does give a little more weight to them as compared to the other set of 5 affidavits. It is that the deponents of the first mentioned affidavits have affirmed that they had joined hands with the first party in the matter of reclaiming the land and that the first party had expended a large sum of money in carrying out those operations. It is the definite case of the second party that the land had been under the plough for a period of about two years before the conflict between the parties was reported to the Sub -divisional Magistrate on 8 -11 -1968. Therefore, obviously the land had been brought under the plough after the order dated 17 -10 -1966 made in Second Appeal No. 76 of 1966. The second party has not indicated in their affidavits how and when they reclaimed the admittedly grazing field into paddy growing land. Their affidavits are completely silent on that subject and therein lies the weakness of their defence.;


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