OBE MIA Vs. THOKCHOM AHANJAO SINGH

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, against the order of the S. D. M. I. E. T. in a Section 145 proceeding. The first party who is the respondent herein moved the Magistrate for taking action under Section 145 Criminal Procedure Code stating that the original second party, who is the first petitioner herein interfered with his possession of one pair of land in patter No. 54/226 -I.E.T. The land was also described by boundaries in the petition. The Magistrate sent it for a Police report and the Police reported that there was dispute about the land which was likely to create a breach of the peace, as both the parties were claiming to be in possession of the land, the first party claiming it as in patter No. 54/226 while the second party was claiming it as part of patter No. 54/471. The learned Magistrate issued a preliminary order on 22 -8 -1962 stating that there is dispute regarding one pair of land under patter No. 54/471 and that there was likelihood of breach of the peace and he directed the attachment of the said land.

(2.) NOW the Sessions Judge has stated that the learned Magistrate attached the disputed plot as in patter No. 54/471 and disallowed the application of the first party for correcting the description of the patta number even though the first party's claim was for a land in patter No. 54/226, that the duty of the Magistrate was to have issued a commission to decide whether the disputed land was in patter No. 54/226 or in patter No. 54/471, and that the wrong description of the land in dispute in the preliminary order and the failure to get it fixed at the spot by issuing a commission vitiated the proceedings. Secondly, he has pointed out that when the preliminary order was issued, petitioners 2 and 3 were not before the Court, that notice of the preliminary order should have Been serried on the newly added parties and that the final order passed without such notice vitiated the enquiry.

(3.) NO doubt, the claim of the first party was that the land was in patta. No. 54/226, while the claim of the second party was that it was in patter No. 54/471. That is a dispute relating to the right to possession which It is not for a Magistrate to decide. The Magistrate has to decide only the factum of possession when the preliminary order was issued and not the right to possession. The latter question will have to be decided in a Civil Court. Thus, when there is no dispute about the identity of the property, the Magistrate can proceed to decide the factor of possession. No doubt, he wrongly treated the land in dispute at the time of the attachment and at the time of the preliminary order as part of patter No. 54/471. This would have been a serious error if the land was described only by patter. number. But here the land is described by boundaries as well and the boundaries are accepted by both the parties to be correct. Thus, both parties knew in respect of which land, the Magistrate has issued the preliminary and final orders as also the attachment warrant. The Magistrate appears to have accepted the affidavits filed by the first party, bee use many of them were persons who owned and occupied, the adjacent lands.