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Biswambhar Roy Basia and ors. Vs. Aminuddi Talukdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.63
AppellantBiswambhar Roy Basia and ors.
RespondentAminuddi Talukdar and ors.
Excerpt:
criminal procedure code (act v of 1898), section 145 - possesstion question of--evidence documentary necessary to support plea of--adjournment to procure and produce refused, effect of. - .....and inasmuch said courts were closed from before the 9th october and did not re open till first of november, an adjournment for that purpose they contend, was absolutely.5. it is quite true that documents by themselves will not prove actual possession but, obviously, in the present case, any proper appreciation of oral evidence regarding possession is impossible, in the balance of the important documents in question, touching the question of status.6. in these circumstances we can only regard the order refusing an adjournment at the instance of the petitioners, as an arbitrary order constituting a denial of justice.7. we, therefore, set aside the final order made on the 16th november. it will be open to the magistrate to continue the proceedings from the point, reached on the 16th.....
Judgment:

Teunon, J.

1. This Rule arises out of certain proceedings taken under the provision of Section 146 of the Criminal procedure statements and adducing evidence on the 16th of November. On the 16th the prayer of the petitioners for an adjournment rejected and after the examination of one Witness for the first party, a final order was made in their favour.

2. The case of the first party is that their first member, one Aminuddin, had purchased the superior interest in execution of decree and that, after annulment of encumbrances in the manner provided in Section 167 of the Bengal Tenancy Act his bargadars, he remaining members of the fir f party, are in khas possession.

3. The case of the petitioner second party is that the plots in question include their home stead and cultivated lands; that they are occupancy raiyats that; their status cannot be affected by proceedings if they under Section 167 of the Bengal Tenancy Act, and that we have remained and are in possession.

4. In order to enable the petitioners of substantite that case it was necessary for them to produce documents, such as pattas Kabuliyat, copies of Judgments and decrees in the Civil Court., and inasmuch said Courts were closed from before the 9th October and did not re open till first of November, an adjournment for that purpose they contend, was absolutely.

5. It is quite true that documents by themselves will not prove actual possession but, obviously, in the present case, any proper appreciation of oral evidence regarding possession is impossible, in the balance of the important documents in question, touching the question of status.

6. In these circumstances we can only regard the order refusing an adjournment at the instance of the petitioners, as an arbitrary order constituting a denial of justice.

7. We, therefore, set aside the final order made on the 16th November. It will be open to the Magistrate to continue the proceedings from the point, reached on the 16th November prior to the order rejecting the petitioners' prayer for an adjournment and thereafter to dispose of the case in accordance with law.

Ghose, J.

8. I agree.


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