IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.603 of 2002 [Against the judgment and order dated 23.3.2002 passed by the learned Sub-divisional Magistrate, Banmankhi (Purnea) in Case No. 378 M of 1996] ======================================================= Bouku Mandal s/o Late Dhur Kheli Mandal, a resident of village Pipara Police Station Banmankhi District- Purnia. … Petitioner. Versus Sugiya Devi w/o Nirshu Mandal a resident of village Magurijan P.S. Barhara Kothi District- Purnia. .. Opp. Party. ======================================================= Appearance : For the Petitioner :Mr. R. C. Thakur, Adv. :Mr. Kamal Kishore Singh, Adv. For the opp. Party : Mr. Gajendra Kumar Jha, Adv. :Mr. Sushil Kumar Jha, Adv. ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The 1st party petitioner has preferred this revision application against the judgment and order dated 23.3.2002 passed by the learned Sub-divisional Magistrate, Banmankhi (Purnea) in Case No. 378 M of 1996 under Section 145 Cr.P.C. by which the possession over the land in dispute has been Patna High Court CR. REV. No.603 of 2002 dt.18-11-2011 2 declared in favour of 2nd party-opposite party. 2. The case of the petitioner, in brief, is that his father had five brothers out of them two died issueless, three died but their heirs are alive. The heirs of three brothers got six bigahs of land, one co-sharer is Sugiya Devi who sold out one Bigaha 15 katha of land out of her share two bigahas. Her share remained only five katha of land. The land in question bearing Khata No.500, Kesara No. 838, 835, Area 30 decimals of Mauza Pipara, Khata No. 69, Kesara No. 720 and 219, Area 30 decimals of Mauza Patti Bhargama have been in possession of the petitioner which is being disturbed by the second party with the help of unsocial elements. The share of five katha of land is in another Khesara which is in possession of the 2nd party. 3. The case of 2nd party opposite party is that land in question has been recorded in the name of Dhurkheli Gareri, Janaki Gareri, Manaki Gareri and Narayan Gareri in the Survey Khatiyan. Dhurkheli had two sons out of which one of them is petitioner (1st party). Janaki Gareri and Patna High Court CR. REV. No.603 of 2002 dt.18-11-2011 3 Manaki Gareri had no issue. Narayan Gareri had only one issue Sugiya (second party- opposite party). There was no legal partition. Only there was mutual partition. In three shares the second party got 69.13 decimals of land in Kesara No. 838 and also equal share in the land in question. The first party wants to dispossess the second party. 4. Learned counsel for the petitioner submits that earlier this case was decided by the learned SDM vide order dated 8.9.1997 and the possession was decided in favour of the petitioner. 2nd party opposite party Sugiya Devi preferred Cr. Revision No. 423 of 1997. After hearing both the parties the order dated 8.9.1997 passed by the learned SDM was set aside and the case was remanded to the learned SDM with a direction to pass order after examining the petitioner Bouku Mandal, exhibiting the documents and clear findings be given on the plot numbers vide order dated 28.6.1999 passed by the 2nd Additional Sessions Judge, Purnia. In pursuant to that order the learned SDM again heard the matter and the petitioner Bouku Mandal has been examined but the evidence of Sugiya Devi, 2nd Patna High Court CR. REV. No.603 of 2002 dt.18-11-2011 4 party opposite party has not been considered who had admitted that the land in question was in possession of the petitioner. 5. Learned counsel for opposite party has submitted that the petitioner has been examined in this case by the learned SDM as a witness but he could not controvert the contention of the petitioner that the evidence of Sugiya Devi has not been considered by the learned SDM while passing the impugned order. 6. After hearing the learned counsel for both the parties and on perusal of the impugned order it appears that four witnesses have been examined on behalf of the petitioner and four witnesses have been examined on behalf of opposite party. The evidence of Sugiya Devi has not been dealt with in the impugned order. According to the petitioner, she has admitted in her evidence that the land in question at present is in possession of the petitioner. 7. Considering the facts and circumstances, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside and the matter is remitted to the learned SDM for passing the order in Patna High Court CR. REV. No.603 of 2002 dt.18-11-2011 5 accordance with law. 8. In the result, this application is allowed. Patna High Court Dated 18th of November 2011 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)