Babu Ram Pandey vs Shyamdeo Narayan and Others

Dhavle, J.—This application in revision arises out of a proceeding u/s 145, Criminal P.C. The petitioner to this Court is the first party in the proceeding. The trial Court held "on a comparison of the evidence put before me" that the weight of this is on the side of the second party, and found accordingly that possession of the disputed land lay with the second party "Diplal and his brothers." Against the order of the trying Magistrate an application was made to the Sessions Judge who went into the merits in some detail on all the points that appear to have been urged before me and declined to interfere.

The learned advocate for the petitioner, who obtained a rule from Manohar Lall J. explains that the application was admitted as soon as he mentioned his first ground, namely that the order of the Magistrate was without jurisdiction in that it was in favour of the brothers of Diplal who are not parties to the proceeding. This contention is, on the words of Section 145, Sub-section (4) correct, and the learned advocate for the opposite party, while referring to the evidence that Diplal was joint with his brothers, has not urged that it is of any importance to him whether or not the offending words "and his brothers" after Diplal are allowed to remain in the order. The learned advocate for the petitioner urged somewhat strenuously that the judgment of the trial Court is defective in that no reference was made to the presumption of correctness attaching to the revisional record of rights, which I understand is dated 1918. He further contended that the omission of the trying Magistrate to bear that presumption in mind cannot be made good by the Sessions Judge.

These contentions do not take into account the consideration that this Court does not interfere in revision with orders u/s 145, Criminal P.C., on the merits as a rule. The law does not provide an appeal, and the petitioner is fortunate that besides the trying Magistrate the Sessions Judge has looked into the merits of the case. The arguments before me also proceeded on the footing that because khewat No. 2/12 was in the name of Ramnarain Lal while Diplal, the leading member of the second party in the present proceeding, had khewat No. 2/18 therefore it must be taken that they were separate. That proposition is entirely untenable in law, as will be seen from Gajendra Singh v. Sardar Singh (1896) 18 All. 176 which has been repeatedly referred to by their Lordships of the Judicial Committee in several later cases.

The evidence here was that Ramnarain Lal and Diplal and their brothers were all members of a joint family, and in fact, there was a deed of surrender executed by the father in 1916 in which it was stated that all the brothers were joint. The revisional record of rights came two years afterwards, but it is not pretended that there is any indication on the record that in the interval their family had become separate. The entries in the revenue papers, namely the khewats and the D. Register that followed those khewats can, in these circumstances, not be taken as any indication of separation among the brothers.

The result is that the petitioner will have the satisfaction, by means of this application in revision, only of having the three words "and his brothers" after the name of Diplal struck out from the order of the trying Magistrate, and that for the rest the rule must be discharged.