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Satyendra Nath Banerjee and ors. Vs. Krishnadhan Adhikari and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.64
AppellantSatyendra Nath Banerjee and ors.
RespondentKrishnadhan Adhikari and ors.
Excerpt:
criminal procedure code (act v of 1898), sections 145, 146 - disputed land under water--recent possession, determination of, impossible--procedure. - .....cannot possibly be supported on the evidence on the record and en his own findings. he states distinctly that nobody has been in undisturbed possession of the land this year. that must mean from the previous bysakh. later on, he says: 'as there, could not be any act of peaceful possession within two months of the date of the proceeding, this being impossible owing to the land remaining under water, the possession of this year is to be presumed of the man who was in possession during the previous year.' this is in direct contravention of section 145 (4), criminal procedure code. we think, therefore, that the proper order which the magistrate should have made in this case was one under section 146, criminal procedure code, and we accordingly substitute such an order for the order now.....
Judgment:

1. In this case we think that the Rule must be made absolute. The order of the Magistrate, as it stands, cannot possibly be supported on the evidence on the record and en his own findings. He states distinctly that nobody has been in undisturbed possession of the land this year. That must mean from the previous Bysakh. Later on, he says: 'As there, could not be any act of peaceful possession within two months of the date of the proceeding, this being impossible owing to the land remaining under water, the possession of this year is to be presumed of the man who was in possession during the previous year.' This is in direct contravention of Section 145 (4), Criminal Procedure Code. We think, therefore, that the proper order which the Magistrate should have made in this case was one under Section 146, Criminal Procedure Code, and we accordingly substitute such an order for the order now complained of. We hold that it was impossible for the Magistrate to satisfy himself as to which of the parties was in possession of the land in dispute; and the land must, therefore, be attached until a competent Court has determined the rights of the parties thereto or the persons entitled to possession thereof. The Magistrate will issue the necessary attachment on receipt of this order.


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