Sushil Kumar Bhagat vs The State of Bihar and Another

P.K. Deb, J.—This petition u/s 482 of the Code of Criminal Procedure has been preferred challenging the revisional order passed by the 2nd Additional Sessions Judge, Katihar in Cr. Revision No. 40/93 whereby and whereunder the order dated 15.3.1993 passed by the Executive Magistrate, Katihar in Case No. 290 M/81 u/s 145 Cr. P.C. declaring possession of the petitioner over the proceeding land has been set aside. At the initiation of the petitioner, the above mentioned proceedinig u/s 145 Cr. P.C. was registered and proceeded with. The case of the petitioner was that he had purchased the land on 21.9.1973 but the sale deed was cancelled within a month by the vendor on 17.10.1973. There was an ekrarnama earlier in favour of the opposite parties and on the basis of that ekrarnama, regular sale deed was executed in favour of the opposite parties on 19.11.1977. After the sale the name of the opposite party was also mutated and Register II was issued and rent receipts were issued by the State of Bihar. The original court after consideration of the oral evidence and the documentary evidence placed held that cancellation deed against the petitioner was not proper as cancellation could be done only by the Civil Court and as such as the petitioner''s sale deed was prior to that of the opposite party, possession was declared in favour of the petitioner & then the opposite party preferred the revision petition, as mentioned above, and the revisional court held that in a proceeding u/s 145 Cr. P.C. prima facie it is to be seen as to who was in actual physical possession. Ekrarnama in favour of the opposite party was prior to the sale deed of the petitioner and as per that ekrarnama, the opposite party was in possession and then the sale deed was executed in their favour in the year 1977. In the meantime there was a sale deed in favour of the petitioner and the same was again cancelled. A consolidation proceeding was also started but although the Consolidation Officer passed orders in favour of the petitioner, but on appeal the order was set aside and the matter is now pending before the revisional authority. As the mutation, rent receipts were in favour of the opposite parties, the revisional court by giving reasons had passed the impugned order by setting aside the order of the executive court.

On the face of the records it appears that the learned revisional court went depth into the matter and then passed the impugned order.

The only contention before this Court by the counsel for the petitioner was that the proceeding u/s 145 Cr. P.C. does not relate to consideration of title but it was with respect to the actual physical possession and by considering the oral evidence, actual physical possession was found in favour of the petitioner by the executive court which could have been set aside by the revisional court by considering the prima facie title.

I do not find that the learned revisional court has considered the title but while considering the oral evidence regarding actual physical possession, he has taken note of the documentary evidence and then came to the finding that the possession declared in favour of the petitioner was not legal. Hence, it set aside the same. The present petition is in the form of a second revision petition and practically such revision petition is maintainable when the revisional order had gone against him. It is not the case to be considered as a second revision petition filed by the same party. So the submission of Mrs. Anjana Prakash for and on behalf of the Opposite Parties that unless there is jurisdictional error or apparent error on the face of the records, this Court should not interfere in the finding of the revisional court. It is not the entertainment of the petition u/s 482 of the Code of Criminal Procedure as it was not proper at the very first stage as it ought to have been registered as a revision petition. However, as a revisional court also this Court has got the limitation unless it could be shown that the impugned order suffers from impropriety or from misreading or non-reading or suffering from legal lacuna this Court cannot interfere. From the impugned order of the learned Sessions Judge, I do not find that the same suffers from any impropriety or there is misreading or non-reasoning of evidence on the record as no such complaint has been made before this Court. It is not that the learned Sessions Judge had gone to decide the title of the parties in the garb of a proceeding u/s 145 Cr. P.C. Thus I do not find that the impugned revisional order suffers from any illegality or impropriety inviting jurisdiction of this Court to interfere. Hence, this petition is rejected having no force.