KUNJA BEHARI DAS Vs. KHETRA PAL SING
KUNJA BEHARI DAS
KHETRA PAL SING
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Ghose and Taylor, JJ -
(1.) It appears that there has been a decree between the parties, which was passed on the 28 April 1900, and although that decree has been appealed against to this Court, and that appeal is pending, yet we find that in execution thereof possession (though it may be called symbolical) was delivered to the petitioner on the 9 September 1900. The present proceeding was instituted on the 3 December of the same year, and a fresh proceeding by reason of some defect in the earlier proceeding, was instituted on the 3 January 1901.
(2.) The Magistrate, no doubt, finds that on the date of the institution of the proceedings under Section 145 of the Criminal P. C. (he describes it as the date of the dispute), it is the second party that was in possession of the land involved in the proceedings, and he accordingly affirms the possession of that party, but in doing so he seems to have ignored the decree, to which we have made reference. That decree is binding between the parties, and so is the delivery of possession effected on the 9 September 1900, and, until that decree is set aside by a higher Court, it must be taken to be operative, and it is a decree which the Magistrate is bound to give effect to.
(3.) Section 145 of the Code in one of the paragraphs says: "If the Magistrate decides that one of the parties was in such possession (that is to say, upon the date of the institution of the proceedings or within two months antecedent thereto) of the said subject, he shall issue an order declaring such party to be entitled to possession thereof, until evicted therefrom in due course of law, and forbidding all disturbance of such possession, until such eviction.";
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