BHAIRON SINGH Vs. NAIN SINGH
LAWS(RAJ)-1952-3-12
HIGH COURT OF RAJASTHAN
Decided on March 14,1952

BHAIRON SINGH Appellant
VERSUS
NAIN SINGH Respondents


Cited Judgements :-

BHADRAMMA VS. KOTAM RAJ [LAWS(APH)-1955-1-18] [REFERRED TO]


JUDGEMENT

Sharma, J. - (1.)THIS is a reference by the Additional Sessions Judge, Ganga-pur recommending that the order of the Sub Divisional Magistrate, Karoli passed under sec. 45 (iv) be set aside.
(2.)I have heard the learned counsel for Bhairon Singh (hereinafter to be referred to as the applicant) and also Nain Singh (hereinafter to be referred to as the opposite party ). From a perusal of the record it appears that the opposite party made an application for proceedings under sec. 145 on the 24th July, 1950. In this application he alleged that the applicant had forcibly dispossessed him. On the 18th July, 1950 the learned Magistrate sent the case to police for a report and the report was received on the 26th August, 1950. After the receipt of the report, the learned Magistrate, instead of making a preliminary order under sec. 145 within two months from the 18th July, 1950 the date of alleged dispossession, summoned both the parties and then made the preliminary order on the 26th September, 1950. On the said date two months had already elapsed from the date of alleged dispossession. According to proviso (1) to sub-sec. (iv) of sec. 145, the Magistrate could make the order for possession in favour of the complaining party if he had been forcibly and illegally dispossessed within two months before the date of the preliminary order. In this case, the learned Magistrate ignored the provision of this proviso and made the order of possession in favour of the opposite party. Of course, it was due to the fault of the Magistrate himself that the preliminary order was not male within two months from the date of alleged dispossession. The learned Magistrate ought to have been prompt and ought to have made the preliminary order within two months from the date of alleged dispossession, because he should have known that if he were to make the order after the expiry of two months, the whole proceedings will be infructuous. It is a pity that a Magistrate of the position of Sub-Divisional Magistrate should not keep in mind the mandatory and clear provisions of law. Howsoever regrettable the action of the Sub-Divisional Magistrate may be, the provisions of law have to be followed and I am constrained to vacate the order of the learned Magistrate regarding pos-session of the opposite party.
The reference is accepted and the order dated the 18th June, 1951 regarding possession of the opposite party is set aside. A copy of this order be sent to Shri Randhir Singh, Sub-Divisional Magistrate, Karoli through the District Magistrate, Sawai Madhopur. .



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