Sewa Singh vs Kapoor Singh & anr.

This reference has been made by Additional Sessions Judge, Jammu, recommending that the order dated: July, 28, 1990 passed by the Executive

Magistrate. Samba, under section 145 Cr. P. C be set aside and the case be remanded to him for fresh decision after carefully appreciating the

documents and affidavits filed by the parties.

Facts giving rise to the recommendation may briefly be recapitulated.

Kapoor Singh and another respondent herein, filed an application before the Executive Magistrate, Samba, alleging that Respondent Sewa Singh

therein, without any right or title was trying to dispossess the applicants from the land in dispute. The learned Magistrate framed preliminary 'order

and ultimately dismissed the application, The matter was taken up in revision before the Sessions Court and the learned Session Judge was of the

view that the revision merited acceptance and made a reference to this Court recommended that the judgment order of the learned Magistrate be

quashed. This reference was accepted and order of the Executive Magistrate was set aside and the case was remanded to him for a fresh decision.

The trial Magistrate vide order dated: 2871990 allowed the application, holding that the applicant, were in peaceful cultivating physical possession

of the land in dispute and that the nonapplicant was trying to take, forcible possession there of Aggrieved by this order, Sewa Singh filed a revision

petition.

The learned Sessions Judge heard the parties and recorded a finding that the conclusions of the trial Magistrate, on the question of possession were

untenable, because, the learned Magistrate had not appreciated critically the affidavits produced by the parties and had rejected the same in a

perfunctory manner by saying that these were parrotlike versions. The failure on the part of the learned Magistrate to appreciate and critically

examine the evidence of the parties vitiated his orders.

I have heard learned counsel for the parties and perused the record. It is clear from the record that the learned Magistrate neither examine each

affidavit filed by the parties individually and separately nor did appreciate their evidenciary value. He in a general manner, observed, that the

affidavits are nonspeaking documents containing a parrotlike version and merit rejection. He also did not critically appreciate the documentary

evidence on the file.

For the above mentioned reasons the reference is accepted and the impugned order of the learned Magistrate dated: 2871990 is set aside and the

case is remanded to him for a fresh decision. Needless to say, that the learned trial Magistrate will appreciate each piece of evidence and affidavits

produced by the parties and then record his findings regarding the possession.

Record of the case be sent back to the trial Court forthwith.