Trilochan Khilo and Another vs Kusuno Khora and Others

A. Pasayat, J.—The revisional order relating to a proceeding u/s 145 of the Code of Criminal Procedure. 1973 (hereinafter referred to as "the Code'') is being impugned in this application.

The proceeding u/s 145 was instituted u/s 144 of the Code on the prayer of one Trinath Khilo, who died during the pendency of the case before the learned Executive Magistrate. Jeypore in Misc. Case No. 87 of 1980. Therefore, his widow Pravati and brother Trilochan (the present Petitioners) were substituted as the first party members.

The case of the first party is that the suit land belonged to one Naina Khilo, the paternal grand-mother of late Trinath, that she was residing with him and that the deceased Trinath was looking after the cultivation of the land in question. After the death of Naina, Trinath continued to possess the land and during the year 1980 cultivated the suit land and raised various paddy crops of five kiaries in total. It was alleged that on 30-10-1980 the second party members (the present opposite parties) aimed with lathis and tangias forcibly cut and removed a portion of the paddy crops raised and they also threatened to assault the deceased Trinath, when he protested against such action. It was the case of Trinath that he reported the matter to the police authorities, but since no action was taken by them, he instituted the proceeding. It was his further case that prior to the service of the prohibitory order the second party members removed the remaining paddy crops and therefore, the breach of peace still continued. On 12-11-1980 the prohibitory order was passed and the second party members were restrained from entering upon the suitland. On the prayer of the first party the proceeding was converted to one u/s 145 of the Code and the parties were asked to file written statements and documents in support of their claims. The parties; filed their written statements and examined four witnesses each.

The case of the second party members is that Khati (opposite party No. 2 in the present application) is the wife of Kusuna (opposite party No. 1 in the present application). Khati is the daughter of late Naina and they were looking after the properties of Naina and they possessed the land. According to them, they had raised the crop on the land and were in possession of the land till it was attached.

The learned Executive Magistrate held that the first party was in possession of the suit land within two months from the passing of the preliminary order and was entitled to get possession of the land till evicted by proper court of law. He passed orders forbidding the second party members from disturbing the possession of the members of the first party till they were evicted by the competent court. This order dated 23-12-1983 was assailed before the learned Sessions Judge, Jeypore in Crl. Revision Petition No. 36/84 (12/84 of SJ) which was heard and disposed of by the learned Additional Sessions Judge, Jeypore. Before him it was urged that the appreciation of evidence, as done by the learned Executive Magistrate, was not proper and that he erroneously came to the conclusion that the first party members were in possession of the disputed land. It was submitted before him that p. ws. 1 and 2 were not boundary witnesses and in any event were inimically disposed towards the second party members being in litigating terms with them. Similarly it was submitted that P.W. 3 belonged to a different village and he also was in litigating terms with some relatives of the second party members. It was submitted that the evidence of P.W. 4 was so full of contradictions that it should not have inspired confidence. On the other hand, it was submitted, that the witnesses for second party members had in categorical terms established the claim of the second party members. On behalf of the members of first party (Respondents), it was submitted that while exercising the revisional powers, the order of the learned Executive Magistrate should not be interfered with, as there was no glaring defect in the procedure or manifest error in appreciation of evidence and there was no resultant flagrant miscarriage of justice.

The learned Additional Sessions Judge held that the evidence adduced on behalf of the first party members was full of contradictions and that the P.Ws. 1 and 2 were not adjoining tenants and were inimically disposed towards the members of the second party and if the evidence of these two witnesses are discarded what remained was the evidence of P.W. 3, besides that of the first party himself. He held that P.W. 3 admittedly belonged to another village and there was suggestion relating to his being in litigating terms with the members of the second party. He also disbelieved the evidence of P.W. 4. the first party, because his evidence was discrepant. His claim of actual possession was disbelieved since no reliance was placed on his evidence. He also held that the evidence of the opposite party witnesses should not have been disbelieved and that their evidence was more authentic and acceptable. He was of the view that merely because the sale deeds and rent receipts were produced by the first party, it cannot be conclusively held that the first party was in actual physical possession of the disputed land on the date of attachment. According to him, the production of the rent receipts does not prove possession, as any body can pay rent on behalf of the recorded owner. Repelling the submission relating to the limited scope for interference in revision, he held that even if there was no glaring defect in the procedure, the learned Executive Magistrate did not consider the evidence in its proper'' perspective and this resulted in flagrant miscarriage of justice justifying interference. Accordingly, he allowed the revision, set aside the order of the learned Executive Magistrate and declared the possession of the members of the second party over the disputed land and ordered that they were entitled to get possession of the same until evicted in due course of law. This, order dated 19-3-1985 passed by the learned Addl. Sessions Judge, Jeypore is assailed in the present revision application.

Shri H.M. Dhal, learned Counsel for the Petitioners, submitted that the order of the learned Addl. Sessions Judge was not sustainable and tenable in law as he had acted in excess of his jurisdiction while exercising the revisional powers. According to him, there was no scope for interference in revision application, by making re-appraisal of the evidence. He further submitted that even though it may be possible to take a different view on the evidence as adduced that would not be a ground for interference in a revision application, where the scope for Prerference was very limited. Placing reliance on two decision of this Court reported in the case of Nisakar Rout Vs. Indramani Das and Another, and Arjuna Parida and Ors. v. Bhaskar Chandra Sahu and Ors. 64 (1987) C.L.T. 407, be submitted that there was no scope for re-appraisal of evidence say in case of manifest error. On the other hand Shri Deepak Misra, learned Counsel appearing on behalf of the opposite parties, submitted that the interference in revision was called for as there was no consideration of material evidence,and/or erroneous conclusion drawn on material evidence on record. According to him, the conclusion being perverse and one which no reasonable man would have arrived at the revisional court had rightly exercised its jurisdiction. Placing reliance on a decision in the case of Ayodhya Dube and Others Vs. Ram Sumer Singh, he submitted that where the evidence on record was not properly considered and was ignored it calls for interference. He further submitted that the ratio of the aforesaid two decisions relied on by the Petitioner were not applicable to the facts of this case. He further submitted that while exercising the revisional jurisdiction the learned Addl. Sessions Judge had kept in view the correct position of law and made the correct appraisal of evidence and there should be no interference by this Court. The rival contentions need careful consideration.

The scope of interference while exercising the revisional jurisdiction has been amply laid down in various decisions. Broadly speaking the revisional court will not interfere on the ground of insufficiency of materials and more so when the interference is intended to be made by reappreci.ation of evidence except where it is perverse, tainted with errors of law or suffers from non-consideration of material documents. The revisional court will also not interfere where there has been a mere irregularity not causing any miscarriage of justice and or not going to the root of the jurisdiction. Though the powers to determine the correctness of the finding are available u/s 397 and it extends to a finding of fact, the Court in revision would not ordinarily reassess the evidence and interfere merely because the view of the trial court as to the evidence does not commend to itself, because that would be exercising the down on appeal in the guise of revision. See Mahendra Pratap Singh v. Sarju Singh and Anr. 1968 S.C.D. 238 and Pranab Kumar Mitra Vs. The State of West Bengal and Another, . It has been further laid down by the Supreme Court that revision should not lie on the mere ground of misappreciation of evidence. See Satyendra Nath Dutta and Another Vs. Ram Narain, . In Arjuna Parida''s case 2, (supra), a Division Bench of this Court held as follows:

The revisional power of the Sessions Judge enables a Sessions Judge to call for the records of the inferior criminal Court and to examine them for the purpose of satisfying as to whether the finding or order of such inferior Court is legal correct or proper. The power of revision is essentially a supervisory jurisdiction conferred on the Sessions Judge to correct miscarriage of justice arising from misconception of law or irregularity of procedure. It is obvious that a Sessions Judge in exercise of his revisional jurisdiction can only set right a patent error or defect and cannot make a roving enquiry to find out any possible defect or error. This power of revision, therefore, has to be exercised only if the higher Court finds out some patent error in the order of a lower criminal Court and further comes to the conclusion that such error has caused manifest injustice or there has been gross miscarriage of justice. By no stretch of imagination this power can be exercised as the power of a Court of appeal and the revisional Court will have no jurisdiction to re-appraise the evidence and to come to its own conclusion on different questions taking a different view than the Magistrate...

Same was the view taken by this Court in the case of Nisakar Rout1, (supra).

A finding of fact can be attacked as unreasonable or perverse where the finding is based upon a view of the facts which could not be reasonably entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination 10 question or the finding is inconsistent with the evidence and contradictory of it, or where the Court has acted on material partly relevant and partly irrelevant, or where the Court draws upon its own imagination and imports from facts and circumstances not apparent from the record. See The Liquidators of Pursa Limited Vs. Commissioner of Income Tax, Bihar, and The Commissioner of Income Tax, Bihar and Orissa, Patna Vs. S.P. Jain, .

The view of the Supreme Court in Mehta Parikh''s case l (supra) which has been reiterated in Commissioner of Income Tax (Central), Calcutta Vs. Daulat Ram Rawatmull, , is that if there is no direct nexus between the facts found and the conclusion drawn therefrom, the conclusion can be said to be perverse. Therefore, in such a case interference can be made by exercise of the revisional jurisdiction. Keeping the aforesaid principles of law in view, a consideration of the facts and the evidence on record would go to show that the learned Executive Magistrate bad really recorded the conclusion/findings which are contrary to evidence. In respect of P.W. 1 his conclusion is as follows:

P.W. 1 Prahallad Goudo is admittedly an adjoining tenant.

(Underlined by me)

There was no admission by the second party. A bare reading of his evidence clearly shows that he is not an adjoining tenant and therefore, the learned revisional court had recorded a finding that he is not an adjoining land owner of the disputed land and that his brother Jagannath has got land adjoining the disputed land and his son Narasingh is alive but has not been examined. Therefore, the learned Executive Magistrate committed an error of record by holding that Prahallad (P.W. 1) was an adjoining land owner.

Similarly in respect of P.W. 2 Somora Khora, the learned Executive Magistrate has held as follows:

P.W. 2 So mora Khora is also adjoining tenant of the suit land.

A bare reading of his evidence would show that this conclusion is also erroneous. The finding of the revisional court to the effect that he has no land adjoining to the north of the disputed land appears to be correct conclusion from the evidence.

Similarly in respect of P.W. 3 Sanyasi Das the conclusion of the learned Executive Magistrate is as follows:

P.W. 3 Sanyasi Das is also an adjoining tenant.

A bare personal of his evidence would go to show that he belongs to, another village and does not possess any land in the village where the disputed land is situated. Therefore, the conclusion of the learned Executive Magistrate was erroneous. The learned Executive Magistrate has proceeded on the basis as if these three witnesses were in possession of land a adjoining the disputed land and therefore, had given weightage to their evidence and believed their testimony. Since the conclusions are contrary to the materials and evidence on record, it can be said that he has acted contrary to the materials and evidence on record. Thus, he has acted on irrelevant materials in support of his conclusions. It is not known as to what extent these irrelevant materials have influenced his conclusions. Therefore, the revisional court was right in interfering with his order. As laid down by the Hon''ble Supreme Court in the cases of C.I. T v. S. P. Jain2 and C. I. T. v. Daulatram Rawatmull10, (supra), if a Court acts on materials partly relevant and partly irrelevant, it is not known as to what extent the irrelevant materials have influenced the ultimate conclusion and the judgment becomes vitiated in the instant case, as the description of the factual position would go to show, the conclusions of the learned Executive Magistrate were contrary to the evidence and materials on record and therefore, his conclusions were not correct and the revlsional Court rightly interfered and on a careful consideration of the materials on record came to the correct conclusions. The revisional jurisdiction has, therefore, been rightly exercised. It is not a case of re-appraisal of evidence. Re-appraisal would mean re-assessment. If the revisional Court had drawn a different conclusion on the available facts, the position would have been different. In the instant case, the conclusions drawn from the basic facts were erroneous and the learned Executive Magistrate committed errors of record. In this background, it is not a case of re-appraisal or re-assessment of evidence. It is a correction of an error of records committed by the lower Court whose order was being impugned before the revisional Court. Therefore, the decisions relied upon by Shri Dhal for the Petitioners could have no application to the facts of this case. The order of the learned Executive Magistrate consisted of faulty reasoning and therefore, was rightly interfered with by the revisional authority. I, therefore, find no reason to interfere with the order passed by the learned Additional Sessions Judge,

I may indicate here that the impugned order also causes no miscarriage of justice, because in a proceeding u/s 145, Code of Criminal Procedure what is decided is possession on a relevant date. The question of title and/or nght of parties in dispute is not determined. Therefore, while exercising the revisional jurisdiction, as there is no miscarriage of justice and the learned Additional Sessions Judge has exercised his power after correct appreciation of facts, I do not find it justifiable to interfere further in the matter. In the circumstances, the revision application fails.

In the result, the revision is dismissed and the impugned order is affirmed.

Revision dismissed.