Subh Narayan Kuer and Others vs Lakshmi Narain Kuer

Thornhill, J.—This case comes up in revision u/s 435 of the Criminal Procedure Code. It appears that an order has been passed u/s 145,

Criminal Procedure Code, declaring the first party in possession of the disputed plot. The case for the petitioners is that they and the first party are

descendants of one Ajodhya Kuer and all the lands which belong to the family are joint and are in joint possession of the members of the family,

and that there has been no partition of any kind. They also allege that the lands shown to be in joint possession in the revisional survey conclusively

show that they still are in joint possession. The lands mentioned in the survey are 18 bighas odd and include plot No. 1669 the subject-matter of

these proceedings. The judgment of the learned Deputy Magistrate has been attacked on the ground that possession of the land is joint and,

therefore, no order u/s 145 of the Criminal Procedure Code could be made The case of Tarujan Bibee v. Asamuddi Bepari 4 C.W.N.426 has

been referred to in support of this argument. In that case the Magistrate found that the lands were actually in joint possession of both the parties. In

the present case it appears to be admitted by the Deputy Magistrate that the lands were originally joint, but he points out that the first party has

proved an ekrarnama by which all the parties appointed a panchayat to decide the dispute. The award of the Panches was proved, and the award

allotted to each pattidar the land which was in his name in the rent roll. The learned Magistrate also points out that the second party Subh Narain

executed a lease in favour of the Karnaul Factory leasing certain lands, which he would not have been entitled to lease by himself had the award of

the Panches not been acted upon. This Subh Narain although summoned has refused to come forward and state that the award of the Panches was

not acted upon and separate possession had not been taken thereunder. The case of Kali Kristo Thakur v. Golam Ali Chowdhry 7 C. 46 : 4 L.R.

199 : 8 C.L.R. 245 : 3 Ind. Dec. 579 has also been relied upon for the petitioners, Counsel says that the learned Magistrate has decided the case

on the evidence of title alone. It is true that the case referred to lays down where no sufficient evidence of possession was produced before the

Magistrate but evidence as to title of the person in whose favour the Magistrate found was given and where the Magistrate based his decision upon

the evidence of title, the Magistrate was wrong in coming to a finding of possession. Counsel says that on the authority of that case if the learned

Deputy Magistrate came to the conclusion that the evidence on the question of possession was unsatisfactory he should have passed no order u/s

It appears from the judgment of the learned Magistrate that the evidence of possession is not over satisfactory on either side, but it is clear

that such evidence as was given he took to be altogether in favour of the possession of the first party. In the judgment of Pontifex, J., in Kali Kristo

Thakur v. Golam Ali Chowdhry 7 C. 46 : 4 L.R. 199 : 8 C.L.R. 245 : 3 Ind. Dec. 579, he distinctly states, ""I also wish to add that if there had

been substantial evidence of possession or a conflict of evidence on that question, the Magistrate would have been justified in looking to the

evidence of title in corroboration of the evidence of possession"". It appears to me that this is exactly what the learned Deputy Magistrate has done.

He states the only question is the question of possession and has found such possession to be with the first party. The learned Counsel for the first

party has referred me to the case of Parmessar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 1 P.L.W. 95 : (1917) Pat. 1 : 17 Cr. L.J.

369, where the law relating to Section 145 is summarised, and also to Article 377 of Doyce''s Criminal Procedure Code. In my opinion the

judgment of the learned Deputy Magistrate is right and strictly in conformity with law.

The application is rejected and the Rule is discharged.