IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.48 of 2008 1. RAM AWADHESH SINGH S/O LATE RAM SAKAL SINGH 2. RAM SURAT SINGH S/O RAM AWADHESH SINGH ALL R/O VILL. BARAKI KHARARI, P.S. KARGAHAR, DIST. ROHTAS. --- 2ND PARTY/PETITIONERS. Versus 1. STATE OF BIHAR 2. SUNIL SINGH S/O RAM KAILASH SINGH R/O VILL. BARAKI KHARARI, P.S.KARGAHAR, DIST. ROHTAS. -- IST PARTY/OPPOSITE PARTY. For the Petitioners : Mr.Mahesh Prasad, Advocate. For the O.Ps : Mr. Sudama Singh, Advocate. For the State : Mr. Nityanand Tiwary, APP ----------- 03 18.08.2010 Heard learned counsel for the petitioners, the State and opposite party. Petitioners are the second party to the proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the „Code‟) being case no. 1560 of 2002 (Sunil Singh vs. Ram Awadhesh Singh & ors.). Opposite party no.2 herein is the first party to the aforesaid proceeding. The dispute relates to possession over part of khata no. 241 plot no. 1487 measuring an area of 68 decimals. It is admitted position that the total area of the plot is 01 acre. It is also admitted position that both the parties are the descendants of one common ancestor named late Bansh Lochan Mahto. The khatiyan of the land in question stood recorded in the name of aforesaid Bansh Lochan Mahto. Initially a proceeding under Section 144 of the Code was initiated which was subsequently converted into proceeding under Section 145 of the Code. It appears that on hearing the parties the proceeding was dropped by the Magistrate. Aggrieved by the aforesaid order 20.09.2004, the first party/ opposite party no.2 2 preferred a revision being Cr. Rev. no. 309 of 2004. On a consideration of the submissions made on behalf of the parties, the same was allowed by order dated 31.01.2005. The proceeding was remitted back to the learned Executive Magistrate for deciding afresh. Learned Magistrate, by order dated 04.04.2005, decided the aforesaid proceeding in favour of the first party/ opposite party no.2 herein. Possession in respect of 62 decimals of land out of total area of one acre of land appertaining to khata no. 241, plot no. 1487 was decided in favour of the first party. The second party (petitioners of the present case) aggrieved by the aforesaid order preferred Cr. Rev. no. 140 of 2005. It appears that a submission was raised that without giving adequate opportunity to them the proceeding was decided. Consequently the learned Sessions Judge by order dated 31.08.2006, allowed the aforesaid revision application and matter was again remanded back for deciding the dispute afresh. This time the second party filed their written statement. On a consideration of the oral evidence and some of the documents placed on record by the parties, the proceeding was decided in favour of the second party/ petitioners herein. The first party/opposite party no.2 aggrieved by the aforesaid order preferred revision no. 164 of 2007. Learned revisional Court ( Fast Track Court no.3), Sasaram, Rohtas by order dated 07.11.2007 considered the materials on record including the oral evidence and upturned the order dated 04.07.2007 passed by the learned Magistrate and deciding the dispute in favour of the first party/ opposite party no.2. Aggrieved by the aforesaid revisional order 3 the second Party/petitioner has approached this Court. While assailing the order impugned, it is contended that the revisional Court ought not have decided itself the issue of possession finally. If the circumstances required interference the only course open to the revisional Court was to remit the case back to the first Court for decision afresh. He relies on a judgment of this Court rendered in a case 2007(1) PLJR 671 (Ramjee Prasad & ors. vs. State of Bihar & Anr.). It is next contended that the order of revisional Court stands vitiated as certain documents have been referred to and relied upon by the learned revisional court which were not duly proved and exhibited in the proceeding. He relies on a judgment of this Court in a case 1981 PLJR 275 (Bhun Thakur & Ors. vs. Jagdeo Beldar & Anr. paragraph nos. 2 and 3). Learned counsel appearing on behalf of the opposite party no.2, on the other hand, submits that the revisional Court was justified in law in deciding the issues finally in view of the materials which was/were already available on record. He relies on a judgment of this Court rendered by a Single Judge of this Court in the case of Pany Marandi @ Panu & ors. vs. Thakur Kisku & ors. reported in 1978 B.L.J. 694. It is next contended that two documents which were brought on record are the khatiyan in respect of khata no. 241, plot no. 1487 which is also being relied upon by second party. Another document which has been referred to is the rent receipt in respect of the aforesaid land issued in favour of the second party. I have heard the submissions advanced on behalf of the 4 parties and perused the materials on record. This Court deems it apposite to first deal with the submissions advanced on behalf of the petitioners that the only course available to the revisional Court was to remand the case back to the first Court for deciding the issue of possession. Learned counsel has placed reliance on the judgment rendered in the case of Ramjee Prasad ( supra). I have perused the judgment. The issues raised in the present application have not been dealt with in reference to the different provisions of the Code. On the contrary, this Court finds that a Bench of this Court in the case of Pany Marandi @ Panu ( supra) has dealt with in detail the powers of the revisional Court in a proceeding arising out of 145 of the Code. In para -4 of the report it has been held as under:- “4. Learned counsel for the parties have not been able to lay their hands on any decision of this Court or of any other High Court which may have direct bearing on the question which has arisen for consideration in this case. I have given my careful consideration to the submissions which have been made before me and I have come to the conclusion that the learned Additional Sessions Judge had jurisdiction to pass the order which he has passed in the Criminal Revision. My reasons for the aforesaid conclusions are these:- Section 401(1) of the Code of Criminal Procedure, 1973, hereinafter to be called the Code, provides inter alia, that in the case of any proceeding the record of which has been called by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386,389,390 and 391 or on a Court of Session by section 307. Sub-section (1) of section 399 of the Code provides that in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section 5 (1) of section 401. Section 400 of the Code lays down that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chapter XXX in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. Thus, it is clear that the Additional Sessions Judge could exercise any of the powers conferred on a court of appeal by sections 386, 389, 390 and 391 of the Code. Section 386 of the Code is relevant for the purpose of the present discussion; clause (a) of section 386 deals with an appeal from an order of acquittal; clause (b) deals with an appeal from conviction; clause ( c) relates to an appeal for enhancement of sentence and clause (d) relates to an appeal from any other order. We are concerned with this very clause which provides that in an appeal from any other order, the appellate court can alter or reverse such order. This power of alteration or reversion of the order can, therefore, be exercised by the learned Additional Sessions Judge sitting as a revisional court in respect of the cases which are transferred to him by any general or special order of the Sessions Judge. It is not disputed that the Criminal Revision in question had been transferred to the learned 2nd Additional Sessions Judge by the learned Sessions Juge, Dumka. Therefore, the only point which arises for consideration is as to whether the order passed by the learned Additional Sessions Judge in revision case amounts to the alteration or reversal of the Magistrate‟s order. I have no doubt that it does. The learned Magistrate had declared possession of the second party over the disputed lands and the learned Additional Sessions Judge reversed that order and declared possession of the first party over the same. In my view, clause (d) of section 386 of the Code clearly empowers him to do so. It is true that a revisional court very rarely itself enters into the question of possession in a proceeding under section 145 of the Code, but that would not go to show that it has no such powers. Thus, in my view, the learned Additional Sessions Judge was quite competent to declare possession of the first party over the disputed land.” Concurring with aforesaid view, this Court does not find any force in the said submission of the learned counsel for the 6 petitioners. So far as the second submission of the petitioners is concerned, this Court finds that the first Court decided the issues primarily on oral evidence although it has observed that the issues are being decided on the strength of oral as well as the documentary evidence brought on record by the parties but the details whereof have not been set out in the order passed by the learned Executive Magistrate. The learned revisional Court, on the other hand, has considered the two documents one is the khatiyan in respect of the land in question and another is the rent receipt. The written statement filed on behalf of the second party/petitioners in paragraph no.8 states as under:- Þ;g fd fookfnr tehuksa dk ekyxqtkjh jlhn ,oa iuoV jlhn foi{kh x.kksa ds uke ls dVrk gS rFkk LikWV ij Hkh foi{kh x.kksa dk n[ky dCtk gSAÞ This Court finds that no such document was placed by them in the Court below. On a perusal of the order, this Court finds that the learned revisional Court has passed his order primarily on the basis of the oral evidence adduced on behalf of the parties keeping in the backdrop one admitted fact that both of them belong to the same family where they are claiming partition in respect of the land in question. Reliance placed on khatiyan by the revisional Court is of no consequence. Petitioners sought to file rent receipt respecting the disputed land but the same was not filed. Court could have drawn adverse inference against them. In view of the aforesaid position as also the age of the proceeding, this Court is not inclined to interfere with the order impugned passed by the learned revisional Court. However, it is 7 observed that any findings with regard to the title in respect of the land in dispute shall not prejudice any party to this proceeding in case an appropriate proceeding is levied in a competent Court of law. The application is dismissed. Sym ( Kishore K. Mandal, J.)