GULAM NABI SARDAR Vs. MAHENDRA BAR

JUDGEMENT

(1.) This is a revisional application by the second party for setting aside an order passed by the Sub-divisional Magistrate of Basirhat on December, 29, 1955, under Section 145 of the Code of Criminal Procedure attaching the disputed land and appointing the Government Tahsildar, Kamarpara, as a Receiver. In order to appreciate the contentions urged before us on behalf of the Petitioners it is necessary to state a few facts. On June 22, 1955, an application was filed by the present opposite party before the Subdivisional Magistrate, Basirhat, for drawing up proceedings under Section 144 of the Code of Criminal Procedure against the present Petitioners in respect of a 20-bigha plot of land in Mouza Pathankhali, P.S. Sandeshkhali. An order under Section 144 of the Code of Criminal Procedure was passed on the Petitioner and proceedings were drawn up accordingly. On July 12, 1955, however, on the objection of the present Petitioners the proceedings were rescinded on the ground that the name of Mouza Pathankhali had been scored through and the name of Mouza Kamarpara inserted without authority in the notice that was actually served on him. On November 8, 1955, a fresh petition was filed by the present opposite party before the learned Magistrate against the present Petitioners praying for an order under Section 144 of the Code of Criminal Procedure on the allegation inter alia that there was an apprehension of imminent breach of the peace in respect of the lands mentioned in the petition. The Petition mentioned two plots of land each measuring 10-bighas in Mouza Kamarpara. P.S. Sandeshkhali. Thereupon on the same day, the learned Magistrate referred the Petition to the Chairman, Shambhunagar Bhag Chas Board, for enquiry and report by November 28, 1955. No report was, however, submitted by the Chairman, Bhag Chas Board, by November 28, 1955, and on that day the learned Magistrate passed the following order:

(2.) In the order-sheet of the same day, the Magistrate stated inter alia that he was satisfied that there was an apprehension of the breach of the peace and immediate prevention was necessary. Curiously, however, though the petition was in respect of two plots of land each measuring 10-bighas of Mouza Kamarpara, in the proceeding that were actually drawn up on November 28, 1955, only one plot of land, namely, the first plot, was mentioned in the description of land. The error was pointed out a few days later by the present opposite party by a Petition in which it was stated that due to inadvertence in the proceedings only one Schedule land had been mentioned and another had been left out. It appears from the record that the learned Magistrate put off passing orders on this petition from day to day. Finally, this Petition was ordered to be put up on December 29, 1955. On December 20, 1955, the present Petitioner filed a Petition before the learned Magistrate praying for rescinding the order under Section 144 which had been passed on November 28, 1955, mentioning inter alia that a specific case was pending in connection with the disputed land. Thereupon on December 21, 1955, the learned Magistrate heard the lawyers of both sides and passed the following order:

(3.) The Tahsildar submitted his report on December 27, 1955, stating that he went to the disputed land with both the parties, examined witnesses and came to the conclusion that the present Petitioners had actually grown paddy on the disputed land. On December 28, 1955, a report was also received from the Chairman, Bhag Chas Board, in pursuance of the order which had already been passed by the learned Magistrate, on November 28, 1955. This report is dated December 18, 1955, though it appears to have been received by the learned Magistrate on December 28, 1955. In this report it was stated that the present Petitioners might have cultivated some portions of the land while the present Opposite party might have cultivated the balance of land afterwards. The report concluded with the observation that "at present the situation "of the locality is very tense and breach of peace is apprehended "at the time of harvesting". It may be repeated that the date of this report is dated December 18, 1955. On December 28, 1955, the learned Magistrate had thus two conflicting reports before him, one by the Chairman, Bhag Chas Board and another by the Government Tahsildar. He heard the lawyers of both the parties that day and on the following day, that is, the 29th of December, 1955, he passed an order stating inter alia that he had two conflicting reports before him, that he could not understand how the present Petitioners could go upon the land when the first party, namely, the present Opposite party, was the bargadar on the land and was not evicted and prima facie, he found that possession was very much disputed and no definite conclusion could be arrived at as to who grew the paddy. He then passed the following order: