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Criminal Revision No. 70 of 1969, decided on 20th Novem ber 1969.
S. 145‑Dispute as to possession of immovable property‑Proceedings drawn: up on basis of finding of apprehension of breach of peace‑Nothing indicating subsequent cessation of such apprehension‑Mere fact that Court in its final order did not record a statement that apprehension of breach of peace .subsisted at time of passing of final order‑Does not render order illegal.
Ali Hossaln v. Sayedur Rahman 21 D L R 410 eel.
S. S. Haldar for Petitioner.
S. J. H. Sekandar for the Opposite‑Parties.
Date of hearing: 13th November 1969.
This rule was issued against an order passed under section 145, Cr. P. C.
The relevant facts are that upon an application filed by the present petitioner a proceeding under section 145, Cr. P. C. was drawn up and on hearing evidences the learned Magistrate passed an order on 10‑4‑68 holding that the opposite‑parties were in possession of the disputed land by virtue of annual settlement. The legality of the aforesaid order was challenged by the petitioner by an application filed under section 438, Cr. P. C. The Additional Sessions Judge who heard the application rejected the prayer for reference to this Court. Thereafter the petitioner obtained this rule.
Mr. S. S. Haldar the learned Advocate appearing on behalf or the petitioner contended that the impugned order was passed without taking into consideration the fact that the disputed property was released on 23‑7‑65 by the Evacuee Property Management Board from which that opposite‑parties claimed to have taken settlement of the land. It appears that the petitioner did not produce either any documentary or oral evidence in support of his claim of title or possession in the disputed land before the learned Magistrate who held inquiry into the question or possession On the other hand the opposite‑parties adduced evidences in support of their case that they were in possession of the disputed land during the relevant year on the basis of settlement from the Evacuee Property Management Board. In the circumstances this contention does not appear to have any force.
It was next contended that there is no clear finding in the impugned order that the apprehension of breach of peace still subsisted wind consequently the impugned order could not be sustained. It appears that the proceeding under section 145, Cr. P: C. was drawn up on the basis of the finding that there was an apprehension of breach of peace and there is nothing to show that the said apprehension ceased to exist subsequently. 'The mere fact that the learned Magistrate in his final order did not record a statement to the effect that there was still apprehension of breach of peace, does not render his order illegal. In this connection reference may be made to a decision in the case of Ali Hussain v. Sayedur Rahman (21 D L R 410 ). This contention, therefore, has flit force at all.
I may observe that although the impugned order was a cryptic one, it was passed upon a finding on the basis of evidence, that the disputed land was in possession of the opposite‑parties during the year 1373 B. S. and consequently there is no ground for interference.
The Rule is accordingly discharged.
Rule discharge
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