Jokhan and Others vs Brahma and Others

K.C. Agrawal, J.—An application was filed by Brahma, the opposite party u/s 145 Code of Criminal Procedure for taking action with respect to plots of chak No. 10 situate in village Chintamanipur, police station Mariahun district Jaunpur. A report was called for from the Station Officer Mariahun on the application of Brahmanand. The Station Officer reported that there was an apprehension of breach of peace. Accordingly on the basis of the report the Additional Sub-Divisional Magistrate passed a preliminary order u/s 145(1) Code of Criminal Procedure on April 6, 1972. He further directed the plots to be attached. In pursuance to the notice issued by the Additional Sub-Divisional Magistrate, the applicant as well as the opposite parties filed their written statements in support of their respective cases of possession. They also filed affidavits and produced documentary evidence. After considering the evidence of the parties, the Magistrate came to the conclusion that the opposite party was in possession of the, plots in dispute on the date of the passing of the preliminary order and two months before it. On this finding, he directed the plots to be released in favour of the opposite party and further prohibited the applicant from interfering with the possession of the other side. Aggrieved by the judgment of the Additional Sub-Divisional Magistrate the applicant, went in revision. The revision was dismissed. Hence this revision.

Two points were urged by the learned Counsel for the applicant in support of this revision. The first point raised by the learned Counsel was that on the admitted case of the parties it would be seen that the plots in dispute were the joint Hindu family property of the applicant as well as of the opposite party. Therefore, the Magistrate committed an error in directing the release of the plots in favour of the opposite party. In the submission of the learned Counsel for the applicant, in a case of joint possession of the property the provisions of Section 145 Code of Criminal Procedure cannot be pressed into aid and, therefore, the Magistrate ought to have rejected the application filed by the opposite party on that ground. So far as the submission of the learned Counsel for the applicant on the question of law is concerned, the same cannot be disputed. It is now the settled position that in a case where the property belongs to two persons or more jointly and the finding on the question of possession is that both or all of them are in possession of the land, in that event proceedings u/s 145 Code of Criminal Procedure cannot be invoked. But where, as here, the plots are exclusively in possession of one of the two co-sharers, the proceedings u/s 145 Code of Criminal Procedure cannot be dropped. The position, therefore, is that even where the property belongs jointly to two persons or more but it is found that it had been in exclusive possession of one of them, the person in possession would be entitled to get the possession of the property u/s 145 Code of Criminal Procedure. His possession would, of course, be subject to the result of a civil suit which may ultimately be filed by one party or the other. In the instant case, however, it was further pointed out by the learned Counsel that the plots in dispute were given exclusively by the consolidation authorities to the opposite party and that the applicant had no right or title over the same. On this basis, the learned Counsel urged that the question of the property being jointly belonging to the applicant and the opposite party does not arise. Be that as it may, the position remains that the Magistrate found as a fact that the property was in exclusive possession of the opposite party. This to my mind was rightly considered sufficient by the Magistrate for holding that the opposite party was entitled to get the possession of the plots attached in pursuance of the preliminary order passed u/s 145 Code of Criminal Procedure.

The second submission made by the learned Counsel for the applicant was that the Magistrate was required to examine the evidence filed by the parties critically under sub-Section (4) of Section 145 Code of Criminal Procedure and as he did not do so the judgment and order given by him-are liable to be set aside. It is true that a mechanical consideration of the affidavits is not to be approved but at the same time as there is no fixed manner or method in accordance with which the affidavits may be considered, it is not possible to set aside the findings recorded by the Magistrate only because the affidavits have not been elaborately discussed as a litigant would like to be done. In the instant case the reading of the judgment of the Magistrate indicates as well that the Magistrate did apply his mind to the affidavits filed by the parties and thereafter came to the conclusion that the affidavits which were filed by the opposite party were more reliable and trustworthy. Accordingly the submission made has no substance.

In the result the revision fails and is dismissed. The stay order is vacated.