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Criminal Appeal No. . 12-D of 1967, decided on 16th November 1967.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 10th February 1966, in Criminal Reference No. 125 of 1965).

S. 145-Contention that case under S. 145 had received superficial treatment by High. Court-Special leave to appeal. granted by Supreme Court.

Promode Chandra Bose, Advocate Supreme Court instructed by B. C. Panday, Attorney for Appellants.

A. Salam Khan, Senior Advocate Supreme Court (Mazhar Hassanain, Advocate Supreme Court with him) instructed by Zinnur Ahmad, Attorney for Respondents.

Date of hearing: 16th November 1967.

-In this simple case falling under section 145, Cr. P. C., it was found necessary to grant leave to appeal to the first party Abdul Mannaf Bhuiya and others by reason of the superficial treatment of the case in the judgment of the High Court, which was one rejecting a reference by the Sessions Judge, under section 438, Cr. P. C., and confirming the order of they Magistrate by which he had held the second party, Hashem Molla and others, to be in possession of the disputed lands, thus obliging the first party to go to law, if they thought fit, for securing their alleged rights. We have examined the evidence in the case with the aid of Mr. P. C. Bose for the appellants (first party) and Mr. A. Salam Khan for the respondents (second party).

The lands are included in some five dag numbers one of which is No. 7 on which there stands a building said to contain 30 or 32 rooms. These lands originally belonged to a Hindu family of Poddars, from one member of which, named Krishto Mohan Poddar, the first party allegedly took settlement some 10 years ago and shortly after bought the proprietary right as well. The first party allegedly cleared the land of jungle and also made the house habitable, and. claimed to have been in possession all through. The second arty also claimed to have acquired the same lands from the son of one Gopal Chandra Saba, who it was claimed had acquired them from the trustees of the aforesaid Krishto Mohan Poddar. Hashem Molla claimed to have made this purchase on a date some six years after the alleged acquisi tion by Abdul Mannaf Bhuiya. That was some 4 or 5 years ago and since then there has been trouble over these lands between the parties. Giving evidence in the case, Hashem Molla said that he took possession of the aforesaid building and kept fuel in a certain number of the rooms, the rest being vacant, but soon after, the first party forcibly trespassed into the building arid he, i. e., Hashem Molla brought a criminal case against them, which was still pending. However, soon after Hashem Molla ousted the first party by force, but during the pendency of the present proceeding under section 145, Cr. P. C., which was commenced by a Police report made on the 12th March 1962, the first party again took possession by force. 1n the course of the proceedings, a receiver was appointed, and he eventually secured possession of the house and the lands. With respect to the house, it was stated in argument before us that Abdul Mannaf Bhuiya has attorned to the receiver, but whether this is in respect of the whole house or only a part thereof remains obscure. (Hasheru Molla' s reply to the Magistrate's notice claimed possession of a part of the building, and his evidence also was. that some of the rooms were in his possession). The Police report said that there was "long standing trouble" over the possession of the disputed lands, and both parties had resorted to force on earlier occasions. . There were cases and counter-cases pending in the courts and as the property was valuable, each party was determined to remain in possession, in consequence of which there was a serious apprehension of a breach of the peace, which might lead to murder.

The Magistrate drew up proceedings and appointed a receiver. Evidence was later recorded for both sides. Each witness for the first party declared that there was a danger of a breach of the peace over the lands in question. Possession was claimed on behalf of the first party, and a similar claim was made by four witnesses appearing for the second party. Among the witnesses for the second party, special mention should be made of Jogesh Chandra Das, P. W. 3, a nephew of Krishto Mohan Poddar. This witness is aged 62 years and lives in the close vicinity of the disputed lands. He said that Krishto Mohan Poddar had created a trust of which Hari Mohan brother of Krishto Mohan and after him his wife were the trustees. Another Hindu witness Gopal Chandra Saba giving evidence for Hashem Molla said that he lived close to the disputed lands and confirmed the statement of Hashem Molla that possession of the properties were with the second party. There have been cases between Gopal Chandra Saba and Abdul Mannaf Bhuiya and accordingly, this witness's statement might require to be received with caution, but Jogesh Chandra Das is clearly a witness who possesses personal knowledge of the previous ownership, and does not appear to have any axe to grind. The witnesses produced by Abdul Mannaf Bhuiya are Bondar Ali, P. W. 2 who allegedly worked as a contractor for cleaning the jungle, Afsaruddin, P. W. 3, who worked on the. repair of the aforesaid building, Karnruziaman, P. W. 4, who worked as a labourer under the contractor Bondar Ali and Sadruddin, P. W. 5, who allegedly cultivated some of the disputed lands.

The Magistrate examined the evidence at length in a judgment covering some 13 pages, and came to the conclusion that up to the time of the institution of the case before him, possession was exclusively with the second party, that is to say, Hashem Molla. This conclusion appears to be clearly in accordance with the weight of the evidence led. Having regard to the nature of the dispute between the two parties, and their previous behaviour in resorting to force on more than one occasion, together with the fact that there were cases and counter-cases pending between them, there need be no doubt that at the time when the Magistrate made his order the danger of a breach of the peace was as lively as when the Police Officer made his report.

Accordingly, it would appear that the learned Judge in the High Court acted rightly in rejecting the reference made by the Sessions Judge, and maintaining the order of the Magistrate, and we accordingly dismiss this appeal.

Appeal dismissed.

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