Smt. Kamla vs Ghasita Singh and Others

I.P. Singh, J.—Smt. Kamla, first party has preferred this revision against the judgment and order dated 5-1-85 passed by Sri J.P. Gupta, II Additional District and Sessions Judge, Bijnor in Criminal Revision No. 74 of 1984 arising out of judgment and order dated 14-6-84 passed by Sri Hari Krishna S.D.M. Dhampur, District Bijnor in case No. 35 of 1984 arising out of proceedings u/s 145 Code of Criminal Procedure.

The preliminary order initially was passed u/s 145(1) Code of Criminal Procedure by learned S.D.M. on 5-12-81. Due to some error it was substituted by another order dated 14-5-84.

Thereafter the matter was considered u/s 146 Code of Criminal Procedure and the learned S.D.M. passed order dated 14-6-84 holding that from the discussion made by him of the oral documentary evidence adduced by the parties he was unable to satisfy himself as to which of them was in possession on the date of the preliminary order i.e. 5-12-81 or two months prior to that so he attached the subject of dispute until a competent Court determined the rights of the parties thereto with regard to the possession thereof. Be also directed the property in dispute to be given in the supurdagi of supurdar as detailed in his said order dated 14-6-84.

Sri. Ghasita second party filed revision No. 74, 84 in the Court of the Sessions Judge, who by his order dated 5-1-85 allowed the revision and set aside the order passed by the learned S.D.M. and held that Smt. Kamla was not in possession of the land in dispute on the date of the preliminary order or even two months prior to that. According to him, the property in dispute was in possession of the co-tenants Ghasita, Sukhan and Chhatar Singh.

Aggrieved by that order, Smt. Kamla has filed the present revision in this Court. Learned Counsel for the revisionist has argued that under Sections 145 and 146 Code of Criminal Procedure, the jurisdiction to decide the question of possession is vested in the Magistrate and the revisional Court cannot go into that question and hold one or the other party to be in possession over the disputed property. It is therefore argued that the present revision should be allowed and the order of the learned II Additional District and Sessions Judge, Bijnor dated 5-1-85 should he set aside.

Bare reading of said sections to my mind, conforms with the above view expressed by the learned Counsel for the revisionist. The opening words of Section 145 Code of Criminal Procedure are "whenever an Executive Magistrate is satisfied...

In support of above contention reference is made to the decision of Mahabir and Others Vs. State of U.P. and Others, in which it was held "A reference to Sections 145 and 146 of the Code of Criminal Procedure makes it clear that it is the satisfaction of the Magistrate which counts under the said sections. A revisional Court may no doubt correct any error in the order passed by the Magistrate. He cannot, however, reassess the evidence and on such reassessment arrive at a finding which is at variance with the finding recorded by the Magistrate. In the instant case, the Magistrate was unable to decide the question of possession. In case the Sessions Judge was of the view that the said order was vitiated on account of any illegality or impropriety, he had ample jurisdiction to set aside that order and to direct the Magistrate to decide the question of possession afresh. The Sessions Judge could not, however make his own assessment of evidence on record and come to conclusion that opposite party No. 2 and not the applicants were in possession of the property attached. That jurisdiction had been conferred by the Legislature exclusively on the Magistrate. The Sessions judge, in the instant case, has committed a manifest error in usurping the jurisdiction which did not vest in him and in passing an order u/s 145 Code of Criminal Procedure.

The same view was again taken by this Court in decision of Chandrabhan Singh Vs. Smt. Kastoori which runs as follows:

A bare perusal of Section 146(1) Code of Criminal Procedure will show that while passing order u/s 146 Code of Criminal Procedure the necessary ingredient will again be the satisfaction of the Magistrate. If the Sessions Judge was of the view that the order of Magistrate was vitiated on account of illegality, impropriety or incorrectness, his jurisdiction was limited to set it aside and direct the Magistrate to decide the question of possession afresh in the light of the evidence which the Magistrate allegedly did not look while passing his order. The Sessions Judge was not justified to make his own assessment of the evidence and come to a different conclusion that the opposite parties and not the revisionist were in possession. That jurisdiction has been specifically conferred upon the Magistrate by the Legislature by the use of the words "satisfaction of the Magistrate in the law itself".

In view of the above enunciation of law, the order dated 5-1-85 of II Additional District and Sessions Judge, Bijnor under this revision cannot be upheld.

The learned Counsel for the Respondents pointed out that if the order of the learned S.D.M. was perverse, then the above quoted decisions would be of no help and the Sessions Judge would be justified to reassess the evidence and come to its own conclusion. In the initial stages of his arguments, it was contended that learned S.D.M. had not considered certain pieces of evidence produced by the parties on record and as such it was manifest that he had not applied his mind to the facts, circumstances and the evidence on record. However, he failed to enumerate those pieces of evidence which were not considered by the learned S.D.M.

The second line of attack is that though the learned S.D.M. had enumerated in his judgment the documents i.e. Khasra, Khatauni and sale deeds, yet he had not made a reasonable appraisement of those documents and as such his expression of opinion that he was unable to find as to which party was in possession was not justified and amounted to a perverse conclusion.

The learned Counsel for the Respondents took pains in taking me through the entire judgment of the learned S.D.M. and I find that he not only enumerated those documents but made certain observations about the deductions flowing from them. To my mind, this is not a proper place to express any opinion as to whether the conclusions drawn by him are justified or not. But at least, I feel satisfied that the conclusions drawn by him, could not be such which could not be arrived at by a reasonable man. In other words the conclusion drawn by him, could not be called perverse. If the perversity was not there, then the learned District and Sessions Judge was not within his jurisdiction to reappraise the evidence and record his own findings about the party in possession of the disputed property.

In the result, the revision succeeds. The impugned order of the learned II Additional District and Sessions Judge, Bijnor, dated 5-1-85 passed in Criminal Revision 74 of 1984 is set aside and that pasted by the learned S.D.M. on 14-6-84 is restored. The learned Magistrate to proceed according to law.

Revision allowed.