Decided on March 18,1966

Abinash Chandra Deb Appellant
Adhir Chandra Nama Sudra And Ors. Respondents


Rajvi Roop Singh, J.C. - (1.) THIS is a reference by the learned Sessions Judge, Tripura, recommending the setting aside of an order dated 26 -10 -64 passed by a First Class Magistrate of Agartala in a proceeding under Section 145, Cr. P. C.
(2.) THE material facts leading up to this reference are as follows: On 1 -6 -64, the petitioner Abinash Chandra Deb filed an application before the S. D. M., Sadar, Agartala against the opposite party with the allegation that on 11 -9 -63 he, as a refugee, got a settlement of 4 k. 16 g. of khas lands in 5 plots appertaining to Dag Nos. 8929/30/ 31/32/33 of Khatian No. 2597 of Mouza Kalkalia P. S. Basutia of Mohanpur Tahsil under Sidhai P. S. The possession of the land was delivered to him by Ashutosh Das, Surveyor and Shri Hari Mohan Dutta, Peon on 11 -9 -63. Thereafter the first party owned and possessed the said land by ploughing and cultivating it. On 12 -4 -64, when the first party went on the land to plough it the second party members, namely, Adhir Ch. Nama Sudra, Chandra Kanta Nama Sudra, Surendra Chandra Nama Sudra, Kali Kumar Nama Sudra, Lalmohan Deb Nath, Rajendra Deb Nath, Anu Deb Nath and Manindra Deb Nath came armed with deadly weapons and trespassed into the said land and threatened to attack the first party, but by the intervention of the witnesses of the first party his life was saved. The members of the second party are now trying to dispossess the first party from the said land, therefore, there is an apprehension of breach of the peace, hence an action should be taken under Section 144, Cr. P. C. The learned S. D. M. sent the petition to O/C. Sidhai P. S. for enquiry and report by 20 -6 -64. The S. D. M. after perusal of the report ordered to issue notice on the second party members to show cause why they should not be asked to abstain from entering into the said land. On 15 -7 -64, the second party members filed an application showing cause and stating inter alia that the first party had never any possession in the land in question and that the second party members were owners in possession of the said land on the basis of their purchase from one Moijuddi and one Abdul Khalek who owned and possessed the said land respectively in Rayati jote and Rayati right. On the same date the learned S. D. M. passed an order drawing up proceedings under Section 145, Cr. P. C. requiring both the parties to file written statements, affidavits and other documents. Thereafter, on 25 -8 -64, the first party filed1 his written statement along with the receipt dated 11 -9 -63, showing the payment of Rupees 34.90 P. as Nazar in respect of the lands appertaining to Khatian No. 2597 of Mouza Kalkalia and by a separate petition prayed for summoning 6 witnesses stating that among them 3 official witnesses and the 3 public witnesses were not prepared to appear as witnesses at the request of first party and that as he was a refugee it was not possible for him to submit affidavit affirmed by his witnesses. The learned Magistrate, however, rejected the prayer. Thereafter the first party filed 3 affidavits. He also filed certain documents. The second party members also filed written statement, 5 affidavits and certain documents. Thereafter the learned Magistrate on hearing the arguments advanced on both sides held that there was no provision for summoning any witnesses, therefore, the prayer of the first party to summon the witnesses is rejected. He by this order also declared the members of the second party to be entitled to possession of the land until evicted therefrom in due course of law. Being aggrieved and dissatisfied with) the judgment of learned S. D. M., Sadar, the first party petitioner preferred a revision petition before the Court of learned Sessions Judge to make a reference to this Court. The learned Sessions Judge after hearing the lawyers appearing on both sides has made this reference with a recommendation for setting aside the order dated 26 -10 -64 passed by the learned S. D. M., Sadar.
(3.) I heard the learned Advocates appearing on both sides and perused the record of the case.;

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