Jai Ram and Another vs Dhani Ram and Others

M. Wahajuddin, J.—I have gone through the grounds in the petition. I have also perused the judgment of the Magistrate as well as the judgment in revision. I do not find any defect in the preliminary order. Once while passing the preliminary order the Magistrate is satisfied about the apprehension of breach of peace, he has to necessarily conclude the proceedings. In the case of Rajpati v. Bachchan 1980 AWC 642 SC it has been held that omission to mention in final order that such apprehension continues does not vitiate it. In case of Bhutani v. Miss Mani 1969 AWR 59 SC (?) (omission in certified copy of High Court) must be concluded. The Petitioner himself annexed the statement of Abdul Waheed (Annexure "5"). Abdul Waheed examined on behalf of the applicant admitted that there is apprehension of breach of peace. The ground urged that there was no apprehension of breach of peace when final order was passed has, therefore, no force.

The next point that has been urged is that the Magistrate should have given due consideration to the decree in favour of the applicant. Learned Counsel of the Respondent relied upon the case of Cactane Colaco v. Jean Rodrigues AIR 1966 Goa 32. It has been observed in paragraph 8 at page 36 that actually in proceedings u/s 145, Code of Criminal Procedure the Magistrate is concerned with the matter of possession on the material date. The decree in favour of the applicant was of 1950 and it may not otherwise also have any material bearing when the dispute regarding possession concerns much later period, i. e., lapse of 25 years or so.

The third point urged is that the Magistrate has not discussed the oral evidence in the case. While I do feel that a reference should ordinarily be made to such evidence also, I have to consider whether in the circumstances of the present case there will be any occasion for exercising the inherent powers. The Magistrate has mentioned that he has perused the materials on record, but has not discussed the oral evidence in its judgment. At the same time, it is not that his findings are not based on material evidence on record. As is the normal routine either side files affidavits and counter-affidavits or leads evidence in support of its counter claim and version. So it is the documentary evidence which has to be given greatest weight. The Khasra entries are prima facie proof of possession. The Magistrate has referred a number of Khasra entries recent as well as of some other previous years. No documentary evidence to counter it seems to have been led by the applicant. The concurrent finding of the Magistrate as well as the court of revision is that the opposite party is in possession. Such finding of fact is supported by documentary evidence. When that is the position, it will not be a proper case for exercising the inherent powers of the Court. In tact, it would lead to unnecessary prolongation of the proceedings.

The application u/s 482, Code of Criminal Procedure is, therefore, dismissed. The stay order dated 12-6-81 is vacated.