Sri Jagannath Mahanta vs Md. Sadeque Ali and Others

Manisana, J.—This revision petition arises from an order dated 23.11.88 passed by the Executive Magistrate Gauhati in Case No. 155m of 1985 in a proceeding u/s 145 Code of Criminal Procedure. The learned Magistrate decided that the second party was in possession of the disputed land and vacated attachment order in favour of the second party. Being aggrieved by the order, the first party has filed this petition.

Mr. K.K. Mahanta, the learned Counsel for the Petitioner has submitted that u/s 145(4), Code of Criminal Procedure the Magistrate has to decide which of the parties was at the date of preliminary order made under Sub-section (1) in possession of the disputed land, but the learned Magistrate has failed to give finding with reference to the date of the preliminary order.

After going through the judgment of the learned Magistrate, I find that the learned Magistrate after considering the evidence and materials on record has come to the conclusion that the second party was all along in possession of the disputed land for about 25 years. However, the learned Magistrate while deciding the possession, has not referred to the date of preliminary order in his conclusion. On further reading of the order of the learned Magistrate, it is evident that the Magistrate has accepted the contention of the second party that the second party has been continuously in possession of the land from the year 1960; and that the first party never possessed the land. Therefore, I am of the view that the finding amounts to finding of possession with reference to the date of the preliminary order u/s 145(1) even though the same had not been mentioned in the order. This view of mine finds support from the decision of the Orissa High Court in Dhobai Sahu v. Keshab Bag 1978 Cril LJ 266 . Mr. K.K. Mahanta has referred me to a decision of this Court reported in Dhanbar Ali and Others Vs. Haripada Saha, A perusal of the decision of this Court in Dhanbar Ali''s case shows that it does not help the Petitioner as the fact of that case and that of the present case are distinguishable from each other.

For the foregoing reasons the petition is dismissed.