M.C. Pathak, C.J.
1. This revision petition arises out of a proceeding under Section 145 of the Code of Criminal Procedure.
2. The first party, opposite party, namely Sreeram Chandra Talukdar, Secretary of the Bohori Gaon Samuhia Krishi Samabai Samity, a registered Cooperative Society, filed a petition under Section 145, Criminal Procedure Code on 3-5-1971 alleging that the second party-petitioners created disturbance in the possession of the first party over the land in dispute. The application was sent by the Magistrate to the Police for enquiry and report and the Police submitted a report dated 21-5-1971. The Magistrate considered the Police report and being satisfied that there was likelihood of of breach of the peace with respect to the possession of the land in dispute he drew up a proceeding under Section 145, Criminal Procedure Code by passing a prelinary order on 31-5-1971. Accordingly notices were issued on both the parties requiring them to file written statement, affidavits, documents, etc. In the police report the first party was Sreeram Chandra Talukdar representing the Co-operative Society and the second party were the following persons- (1) Kurpan Ali, (2) Sahaburuddin, (3) Jabed Ali, (4) Najmaluddin, (5) Kader Ali, (6) Jalimuddin, (7) Mafaaruddin, (8) Hatu Khan and (9) Dangraj Mia, Both the parties appeared and filed their written statements, affidavits of witnesses and some documents. The learned Magistrate after considering the material on record by his order dated 22-9-1971 declared possession in favour of the first party. Against the said order the second party moved the learned Sessions Judge who referred the matter under Section 438, Criminal Procedure Code to the High Court with a recommendation for setting aside the order of the learned Magistrate or for passing such other orders as deemed fit and proper by the High Court. The reference was numbered as Criminal Reference No. 8 of 1972 and the High Court disposed of that reference by order dated 27-11-1973 by which the impugned order dated 22-9-1971 was quashed and the case was remanded to the learned Magistrate for passing appropriate order on the materials on record after complying with the requirements of Sub-section (4) of Section 145, Criminal Procedure Code. The case was then taken up by another Magistrate after remand, who heard the parties at length, considered the materials on record and declared possession in favour of the first party by his judgment and order dated 10-7-1974. The present revision petition is directed against the order of the learned Magistrate passed on 10-7-1974,
3. From the judgment of the learned Magistrate it is found that the preliminary order in the proceeding under Section 145, Criminal Procedure Code was passed on 31-5-1971 on the basis of the Police report dated 21-5-1971 which was made on the application filed by the first party on 3-5-1971. The land regarding the possession of which the dispute arises, is covered by Dag No. 58 of Gumir Pathar village and Dag No. 16 of Kapah Tali village and the total area of the land in dispute is 120 Bighas. The case of the first party, that is the Co-operative Society, is that this area of 120 Bighas of land has been allotted to the co-operative Society for cultivation by the appropriate authority and while it was possessing the same some of the members of the second party created disturbance in its possession. The case of the second party is that this area of land is in possession of some of the members of the second party for the last four years as adhiars, mortgagees etc. under some of the members of the Co-operative Society and that some of them have got their residential houses thereon. The first party filed: its written statement, six affidavits and six documents. The second party filed five affidavits and eight documents. The learned Magistrate considered the materials on record and came to the conclusion that the first party was in possession of the disputed land at the relevant time and accordingly declared possession in favour of the first party and restrained the second party from interfering with the possession of the first party over the land in dispute.
4. Dr. J. C. Medhi, the learned Counsel appearing for the first party opposite party, raises a preliminary objection that this petition is not maintainable inasmuch as out of the 21 petitioners only two persons were arrayed as second party in the original proceeding under Section 145, Criminal Procedure Code. On this point we have heard the learned Counsel for the second party-petitioners and also examined the record. It is found that the original petition under Section 145, Criminal Procedure Code was filed by Sreeram Chandra Talukdar, who is the Secretary of the Bohori Gaon Sa-muhia Krishi Samabai Samity. He is also the opposite party in this petition. The second party in the original proceeding, that is in the preliminary order passed by the learned Magistrate on 31-5-1971, consists of the following persons : (1) Kurpan Ali, (2) Jabed Ali, (3) Sahaburuddin, (4) Najmaluddin, (5) Kader Ali, (6) Jalimuddin, (7) Maharuddin, (8) Hatu Khan and (9) Dangraj Mia. Of these nine persons of the second party we find that in the present petition only Kurpan Ali and Jalimuddin, petitioner No. 1 and No. 19 respectively, are found to be the second party. The others are found not to be included as second party in the original proceeding nor any notice was issued to them as party to the proceeding. Their names are no doubt, as pointed out by the learned Counsel for the petitioners, in the judgment of the learned Magistrate but that is, as is found on scrutiny, under misconception. The names of the other petitioners excluding Kurpan Ali and Jalimuddin have been recorded as second party in the order of the learned Magistrate only from the fact that in some of the affidavits filed in the case it was alleged that some portions of the disputed land were in possession of these persons. But consulting the original record we could not find any thing which would go to show that the petitioners Nos. 2 to 18 and 20 and 21 were ever impleaded as parties in the original proceeding or ever any notice was issued to any of them. That being so, the present petition by petitioners Nos. 2 to 18 and 20 and 21 is not competent. Even then, the petition has to be considered so far as petitioner No. 1 Kurpan Ali and No. 19 Jalimuddin are concerned because they are found to be the second party in the original proceeding.
5. Mr. A. M. Mazumdar, the learned Counsel for the petitioners, submits that after the case was remanded by the High Court the learned Magistrate has failed to carry out the directions given in the earlier judgment of the High Court in this matter. He has also drawn our attention to the observations of the High Court made in the judgment dated 27-11-1973. The substance of the learned Counsel's submission is that even after remand the learned Magistrate has failed to comply with the requirements of Sub-section (4) of Section 145 of the Code of Criminal Procedure. In this connection the precise submission of the learned Counsel is that the learned Magistrate has failed to consider the documents filed by the second party in the instant case and that he has committed the error of going into the right to claim possession while he is required under the law and also as directed by the remand order of the High Court to go into the question of actual possession irrespective of the right to claim possession and that the learned Magistrate in the impugned order has landed himself in contradictory findings leading to perversity. We have already observed that the first party filed six documents and the second party filed eight documents. In the impugned order the learned Magistrate has noted down the documents filed by both parties. He has considered the affidavits filed on behalf of the first party sworn by (1) Narendra Nath Das, (2) Birendra Nath Das. (3) Ananda Ram Das, (4) Baharuddin, (5) Motamer Ali and (6) Sahebuddin. He has also considered the affidavits filed on behalf of the second party, namely, the affidavits of (1) Chan Md., (2) Saheb Ali, (3) Darog Ali, (4) Billal Khan and (5) Sada-nanda Das. Thereafter, it is found that the learned Magistrate in his order has considered the respective cases of both the parties keeping in view the written statements filed by them. It is also found that the documents filed by both the parties have also been considered by the learned Magistrate one after another. The fact that the land in question has been allotted to the first party- Co-operative Society is not disputed. The second party members admit that position. Their case is that the first party is not in actual possession of the land in question but the members of the second party are in actual possession. This very question was mooted by the learned Magistrate in his order and he discussed the evidence as disclosed in the affidavits as well as considered the documents filed on behalf of both the parties. To ascertain the question as to which party was in actual possession of the disputed land, he also considered the written statements filed by the parties and finally came to the conclusion that the first party was successful in proving its actual possession during the relevant period,
6. Mr. Mazumdar submits that while considering the question of actual possession the learned Magistrate has fallen into an error of considering the right to claim possession and in this connection he has also drawn our attention to the following paragraph in the impugned order of the learned Magistrate.
The 2nd party by admitting the first party's title of the D/L. could not establish their claim for possession of the D/L. as adhiars, thikadars and mortgagees under the first party by producing any documents.
6-A. We find that above observation was made by the learned Magistrate in order to meet the plea of the second party that some of them are in actual possession of the land in dispute as adihiars, thikadars and mortgagees under some members of the first party. The names of the persons under whom some members of the second party claim to have occupied the different portions of the land in dispute as adhiars, thikadars and mortgagees have been given and on consideration of those names the learned Magistrate has found that they are not members of the first party- Co-operative Society. Some documents were also produced to show that some members of the second party were adhiars, thikadars and mortgagees but those were also found to relate to land different from the land in dispute. That being so, we do not find that the learned Magistrate committed any error in making the above mentioned observation in the impugned order inasmuch as the learned Magistrate only wanted to examine the claim of actual possession made by the second party and when he found that the claim of actual possession under some persons of the first party was not found proved or was found to be disproved the learned Magistrate could correctly refuse to rely on the affidavits of the second party to the effect that they were in actual possession. We do not find anything wrong or any error of law and fact in this finding.
7. The learned Counsel for the petitioners has also drawn our attention to some of the observations of the learned Magistrate made in the impugned order wherein it is stated that Sreeram Chandra Talukdar, the opposite party herein, admitted that some members of the second party were in actual possession of the disputed land in an earlier proceeding under Section 145, Criminal Procedure Code. We have examined this aspect of the submission with reference to the materials on record. We have also gone through the original affidavits of some of the relevant witnesses. It is stated in these affidavits, particularly the affidavits of Baharuddin and Matahar Ali, that the members of the Co-operative Society themselves have possessed the land and they have taken the help of some hired persons. That is also with respect to Nasimuddin who was one of the second party in the earlier proceeding but no affidavit has been filed by Nasimuddin in the present proceeding either for the first party or for the second party. Hence considering the findings of the learned Magistrate we do not find any contradictory findings leading to perversity. On perusal of the order of the learned Magistrate we find that he has considered the written statements, affidavits and documents filed by both the parties.
8. Mr. Mazumdar also submits that the learned Magistrate did not give any value to the report of the Mandal and the orders of the Sub-Deputy Collector and the Sub-Divisional Officer in rejecting the plea of actual possession made by the second party. We have perused these exhibits and we find that the report of the Lot Mandal refers to possession of some of the members of the second party as adhiars, thikadars and mortgagees under some persons of the first party and the names of those persons were also given but it was found by the learned Magistrate that those persons were not at all members of the first party-Co-operative Society and therefore, they had no right to give any lease or mortgage whatever that may be in favour of some of the members of the second party as claimed. The orders of the Sub-Divisional Officer and the Sub-Deputy Collector also do not solve the problem of actual possession at the date of drawal of the proceeding. In these orders it has been stated that if the Co-operative Society could produce registration certificate then allotment would be made to the society. So, that is regarding allotment. The learned Magistrate after considering all the materials on record has come to the conclusion that the first party was in possession of the disputed land at the relevant time and that the second party has failed to establish their case. Accordingly the learned Magistrate has declared possession of the disputed land in favour of the first party. We do not find any illegality as such committed by the learned Magistrate in arriving at the findings in the impugned order and we do not find any reason whatsoever to interfere with the impugned order of the learned Magistrate in this revision petition.
9. The petition is accordingly dismissed. The stay order stands vacated.
D. Pathak, J.
10. I agree.