1. This is a Rule calling on the Magistrate of the District and the opposite party to show cause why the order complained of in this petition should not be set aside as having been made without jurisdiction.
2. It appears that on the report of a certain police-officer the Magistrate drew up proceedings on the 22nd November, 1906, under Section 145, Criminal Procedure Code, against the parties concerned. He further issued an order for attachment, as he considered it necessary to attach the property in dispute pending the disposal of the case. We find that on the 22nd November, 1907, the Magistrate recorded the following order in the order sheet.--'The settlement proceedings will shortly begin and a big case like this can best be decided then. The case is adjourned sine die.'
3. On the 23rd December about a month after the above order there was a petition put in by the second party to those proceedings, in consequence of which the Magistrate personally went to the place and made a local inspection. From what was stated in the petition and also from what he saw, the Magistrate found it necessary to go on with the case which had been adjourned sine die in expectation of some settlement proceedings.
4. The dispute between the parties has been going on since 1883 and since then there have been many civil suits between them with respect to the land falling between their respective mouzahs. It also appears that there was a solenamah effected in one of those suits in which it was decided that a certain line should be drawn from east to west, the land lying to the north of which would belong to the second party, and the land to the south, to the first party. The lands in dispute from the beginning have been sometimes under and sometimes above water. Dispute arose from the very beginning relative to the new formed lands and the present dispute also appears to have been of the same nature. It also appears that there were Criminal proceedings under Section 145, Criminal Procedure Code, in 1906 with regard to certain lands within the boundaries as given in those proceedings. It appears that a village called Mondal Kandi was the subject of dispute in those proceedings, but we find from the judgment in the present case that those proceedings related to more than Mondal Kandi--which is only an area of 200 bighas, because it appears from the report of the police-officer that he recorded the land in dispute as being 200 bighas besides water. Therefore, in 1906 what was disputed between the parties was not only 200 bighas of land in that village but also lands which at that time were under water.
5. The Magistrate has given, possession to the second party. It is contended by the first party that the order was without jurisdiction and that the Magistrate had no jurisdiction to postpone the proceedings sine die. Secondly, it is contended that the Magistrate had no jurisdiction to deal with land beyond the land which was the subject of enquiry in the present case; and, thirdly, that the Magistrate was bound to act in accordance with the solenamah which was confirmed by the decree of the Civil Court, and that he had no jurisdiction to act against the terms of the solenamah.
6. With regard to the first point as to whether the Magistrate had or had not jurisdiction to postpone the enquiries sine die, we have been referred to Section 344, Criminal Procedure, Code, which relates to power to postpone or adjourn proceedings. The section says, that, 'if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn, any enquiry or trial, the Court may, if it thinks fit, by order in writing stating the reasons therefor, from time to time, postpone or adjourn the Same in such terms as it thinks fit for such time as it considers reasonable.' The reasons assigned by the Magistrate with regard to his postponing the enquiry sine die have been stated by him in the orders-sheet, and we consider that the Magistrate had jurisdiction to act in the manner he did, especially when he expected that settlement proceedings were soon to commence.
7. In this connection it was further contended that the order of the 22nd November, 1907, amounts to an order dropping the proceedings which, were initiated on the 22nd November 1906. We do not think that can possibly be the meaning of the order inasmuch as we do not find anything to indicate that the proceedings have been dropped by the Magistrate the use of the word adjourned necessarily indicates that that could not have been his meaning. We think that if it had been the intention of the Magistrate to drop the proceedings he would also have passed orders for the withdrawal of the attachment order which was passed on the 22nd November 1906. The attachment order was good till the disposal of the case, and the case Was not disposed of on the 22nd. November 1907. Hence we take it that the attachment order continued till the disposal of the present case.
8. With regard to the second point urged we find that the order that has been passed by the Magistrate relates to certain lands within the boundaries as specified in the proceeding's. There is nothing to show that the order of the Magistrate relates to any land beyond those boundaries. We find that the Magistrate has distinctly found that the lands, which are the Subject of dispute in the present case were also the subject of dispute in the proceedings under Section 145, Criminal Procedure Code, in 1906. It also appears that although the former proceedings related to all the lands now in dispute, yet as a matter of fact the possession that had been delivered to the second party in the former proceedings was only with regard to 200 bighas of land and not more. But at the same time we find that the Magistrate has distinctly held that a portion of the lands, which though forming part of the former proceeding's was not made the subject of the delivery of possession in those proceedings, is yet in the possession of the second party in the present case. The Magistrate has held that the land now in dispute was undoubtedly an accretion to Mondal Kandi; and that possession of Mandal Kandi was admittedly given to the second party in the former proceedings. He further goes on to find that these lands being accretions to Mondal Kandi. the second party took possession of them as they re-appeared from the water. Inasmuch as these lands formed part of the former proceedings it is natural to suppose that, when they came but of water, the second party, who admittedly obtained possession of Mondal lands, would take possession of these lands also, and this is the finding of the Magistrate. He further goes on to say that it is quite clear that the first party made another attempt to take possession by force, that is to say, to dispossess the second party. He also says: 'There can be no doubt that failing in the attempt to get the former order under Section 145, Criminal Procedure Code, upset the first party tried in November 1906 to get possession of plot No. 3 by force just as later the same party introduced these men who were clearly little better than hired lathails to seize plots Nos. 3, 4 and 5 after attachment. There can be little doubt, moreover, that the second party had previously taken such possession as was possible of these plots, Nos. 2, 3, 4 and 5 as the accretion of the land which was declared in their possession in the former case, and, as, I have said, believing these accretions to have been covered by the order of possession in that case.' Then he goes on to decide the question of possession on the evidence, and says: 'of the oral evidence that has been adduced on the point of possession the witnesses of the second party are more reliable that: those of the first party and convince me that the conclusion I have drawn from other and more reliable data are correct.' With these findings of the Magistrate we agree.
9. The third ground taken was with regard to the solenamah. The solenamah was, no doubt, a document which was followed in suits in the Civil Courts and confirmed by the decrees of those Courts. What the solenamah has decided was not possession but the right to possession, because it is admitted that at the time that the solenamah was executed all the lands wars not above water. What was decided was that any land coming out of water after the solenamah would be taken possession of by the parties in accordance with the terms of the solenamah. The solenamah did not decide possession of the parties. Besides we find that as a matter of fact the lands now in dispute are the identical lands that Were in dispute in the former proceedings under Section 145, Criminal Procedure Code.
10. Under these circumstances we cannot but hold that the Magistrate's decision with regard to the finding of possession being with the second party is correct.
11. We, therefore, discharge the Rule.