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Nikunja Behari Mullik Vs. Sm. Usabati Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1927Cal944
AppellantNikunja Behari Mullik
RespondentSm. Usabati Devi
Excerpt:
- .....holding and that on the 3rd june her officers went to the land and took khas possession of the land and the asram on it. thereafter one nikunja behari mullik claiming to be a disciple of the sanyasi who has disappeared filed a petition before the sub-divisional magistrate the next day stating that there was a fear of the breach of the peace if he went to the asracu again. at first there were certain proceedings forbidding both sides to go near the land under section 144, criminal p.c., and subsequently on the 17th june a proceeding was drawn up under section 145 stating that there was a probability of the breach of the peace and calling upon both sides to produce evidence of possession. the case went an and the magistrate came to a finding that as a matter of fact the landlord had.....
Judgment:

Duval, J.

1. In this case the Additional Sessions Judge of Hooghly has made a Reference in a proceeding under Section 144, Criminal P.C. It appears that a certain holding was hold by a Sanyasi who disappeared about two years ago and has not been heard of since. It appears that after that the landlord issued and served in the holding a notice through the collector's office under Section 87, Bengal Tenancy Act, to resume possession of the abandoned holding and that on the 3rd June her officers went to the land and took khas possession of the land and the Asram on it. Thereafter one Nikunja Behari Mullik claiming to be a disciple of the Sanyasi who has disappeared filed a petition before the Sub-Divisional Magistrate the next day stating that there was a fear of the breach of the peace if he went to the Asracu again. At first there were certain proceedings forbidding both sides to go near the land under Section 144, Criminal P.C., and subsequently on the 17th June a proceeding was drawn up under Section 145 stating that there was a probability of the breach of the peace and calling upon both sides to produce evidence of possession. The case went an and the Magistrate came to a finding that as a matter of fact the landlord had forcibly taken possession within two months of the order and he, therefore, gave possession to the complainant Nikunja, a disciple of the Sanyasi.

2. Against that order this Reference is made by the Additional Sessions Judge on the ground that there is no expectation of a breach of the peace. At the time of the hearing it is further urged in, support of the reference for questioning the order that the lady is in possession and that she did not forcibly take possession but took possession legally and so cannot be ousted under the provisions of Clause (4) of Section 145. We consider that there is a considerable amount of weight in both these objections. In the first place it appears that Nikunja and his fellow disciples are mainly people of Calcutta, and apparently only used to go to they Asram occasionally. It is not very clear what right they had to the Asram as they did not appear to be Sanyasis and the Asram belonged to the Sanyasi who does not appear to have left any Sanyasi chela; The chance of a breach of the peace would only occur if the first party attempts to take forcible possession of the Asram.

3. It would also appear that the landlord complied with the provisions of Section 87, Bengal Tenancy Act, and, as she has done so, it cannot be said that she has taken forcible possession within the meaning of the clause I have referred to. She appears to have gone on the land by virtue of the provisions of the Bengal Tenancy Act and that would be a legal entry.

4. For these reasons we consider that the reference should be accepted and the order made under Section 145, Criminal P.C. is discharged.

Chotzner, J.

5. I agree.


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