Lakhpat Gope and others vs Emperor

Kulwant Sahay, J.—This is an application on behalf of the first party in a proceeding under S. 145, Criminal Procedure Code. The subject of dispute comprises two fields measuring 4 acres and 39 decimals, being Survey Plots Nos. 316 and 324. The first party claimed this land as their Kasht land while the second party claimed this as their khudakast land. The Record of Rights which was finally published in the year 1911 is in favour of the first party. The learned Magistrate in his judgment says "the parties hare introduced into the case a mass of irrelevant matters fit for cognizance by a competent Court in a regular suit for adjudication of title and restoration of possession with recovery of mesne profits. They have also filed certified copies of documents and of judgments or orders of Courts, most of which tend to throw little light on the case." Then as regards the oral evidence all that he says is, "both the parties have produced oral evidence which is not quite satisfactory." Then he ends his judgment by saying.

I have perused the statements filed by the parties, heard their pleaders and considered the effect of the evidence adduced by them and in the circumstances of the case I decide that the second party was n actual possession of the plots under dispute on the date of the initiation of the proceedings.

In my opinion this judgment cannot stand. The learned Magistrate does not consider the evidence, produced by the parties. The Record of Rights is in favour of the first party. He does not say how this Record of Rights has been rebutted and what is the evidence adduced by the other side. It is stated before me that a large number of documents had been produced by the second party which rebut the presumption raised by the Record of Rights, but the learned Magistrate does not refer to a single one of those documents and it does not appear that he considered those documents inasmuch as he says that most of the documents were irrelevant, and throw little light on the case. As was laid down in the case of Lachmi Ojha v. Biraj Misser [1921] 2 P.L.T. 168: 22 Cr. L.J. 616: 63 I.C. 152, the general remark in an order u/s 146, Criminal Procedure Code, that the oral evidence is not reliable, without referring to it and without giving any reason, is not a disposal of the evidence upon the record. It amounts to a refusal to exercise the jurisdiction vested in a Magistrate by law and is remediable by the High Court in revision. The same view was taken in the case of Kailasbehari Lal v. Jai Narain Rai [1920] 1 P.L.T. 291: 21 Cr. L.J 601: 57 I.C. 169. In my opinion this order cannot be upheld. One can form no idea as to what the evidence on the record is and whether the learned Magistrate considered the evidence adduced by the parties.

This order must be set aside and the case remanded to the Court below for trial according to law.