IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.174 of 2002 (Against the order dated 29.11.2001 passed by the learned Sub- Divisional Magistrate, Majhaul in Case No.1623 (Misc.) of 1981) ================================================== 1. Bishwa Mohan Prasad Singh (now dead), son of late Ramautar Prasad Singh (a) Chandani Devi, wife of Late Bishwa Mohan Prasad. (b) Manoj Kumar Singh. (c) Saroj Kumar Singh. (d) Pankaj Kumar Singh (e) Bhoosan Kumar Singh (f) Roshan Kumar Singh. (g) Kamini Sinha, wife of Sri Birendra Kumar Singh, resident of village-Sukki, Patepur, P.S.-Patepur, District- Muzaffarpur. (h) Kumkum Devi, wife of Sri Arvind Singh, resident of village-Bathnaha, P.S.-Motipur, District- Muzaffarpur. (i) Paso Devi, wife of Sri Shushil Kumar Singh, resident of village-Mozamma, P.S.-Paroo, District- Muzaffarpur. (j) Poonam Sinha, wife of Sri Rajesh Kumar Singh, resident of village- Phulwaria, P.S.-Paroo, District- Muzaffarpur. (k) Pinki Kumari, wife of Sri Ajit Kumar Singh, resident of village-Kafain, P.S.-Hathauri, Distt.-Muzaffarpur. (l) Rinki Kumari, wife of Sri Shashi Bhushan Singh, resident of village-Jasauli, P.S.-Motipur, District- Muzaffarpur. (All sons and daughters of late Bishwa Mohan Prasad Singh, resident of village-Nayanagar, P.S.-Hasanpur, District- Sitamarhi) .... .... Petitioners Versus 1. Banshi Tanti (since died), son of Bhattu Tanti. (a) Ram Dulari Devi. (b) Bikhari Das. (c) Lal Dhari Das. (d) Uma Devi. (e) Kamini Devi. 2. Bhikhari Tanti 3. Lalo Tanti, both sons of Banshi Tanti. (All residents of village-Purpathar, P.S.-Khodawandpur, District- Begusarai) Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 2 .... .... 2nd Party-Opposite Parties ================================================== Appearance: Advocate for the Petitioners : Mr. Bhupendra Narain Sinha : Mr. Shailendra Kumar. Advocate for the Opp. Parties : Mrs. Meera Kumari : Mr. B.N.Sinha ‘Suman’ CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The 1st party-petitioners have preferred this revision application against the order dated 29.11.2001 passed by the learned Sub-Divisional Magistrate, Majhaul in Case No.1623 (Misc.) of 1981 by which the possession over the land in dispute has been declared under Section 145 Cr.P.C. in favour of the 2nd party-opposite party. The land in dispute is appertaining to Mauza- Purpathar in Tauzi No.1233, Khata No.38, Plot Nos.24, 26, 33, 114, 115, 127 and 128 measuring 4 Bighas, 8 Kathas and 8 Dhurs, but on the spot these lands are meansuring 4 Bighas 11 Kathas and 8 dhoors. The facts rising to this application are that an application was filed by the petitioner (original) on 10.09.1981 before the learned Sub-Divisional Magistrate, Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 3 Majhaul to initiate a proceeding under Section 144 Cr.P.C. On which, a report was called for from the concerned police station. After receipt of the report, the Sub- Divisional Magistrate initiated a proceeding under Section 144 Cr.P.C. on 16.09.1981 and subsequently, it was converted into a proceeding under Section 145 Cr.P.C. on 14.11.1981. The case of the 1st party petitioner is that the land in dispute alongwith other lands were sold in auction on rent suit and purchased by the then landlords Sri Jagarnath Prasad Singh and Sri Balbhadra Prasad Singh, resident of village-Nayanagar, vide Case No.93/1910 and Case No.48/1911. The auction sale was confirmed by the 1st court of Munsif, Begusarai on 21.07.1911 and delivery of possession was affected over the lands in dispute and other lands on 16.11.1911. Both the auction purchasers partitioned their lands privately including the lands in dispute, which, were allotted to the share of Jagarnath Prasad Singh, who came in possession of the same. After the death of Jagarnath Pd. Singh, his only son Ramautar Singh inherited the disputed land and came in possession thereof. The said Ramautar Singh settled the disputed Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 4 lands by virtue of Hukumnana dated 1st Asin, 1356 F.S. in favour of Smt. Chandani Devi, wife of the petitioner and since then she is coming in exclusive possession of the same. She was paying rent to the ex-landlords and after vesting of Zamindari her name was mutated in the revenue records of the Anchal and she is paying rent regularly and rent receipts in proof of the payment of rent were regularly issued in her favour. The case of the 2nd party-opposite party is that the lands, in question, were recorded in the name of their ancestors in the cadastral survey and after the death of the recorded tenants, they have inherited the lands being their heirs and claimed to be in possession thereof. They have further claimed that the recorded tenants have executed several mortgage deeds with respect to the lands in dispute in favour of the relatives of the petitioner as well as in favour of the then landlords. The Ex-landlord of the Tauzi had submitted the name of the recorded tenant in the Jamabandi return submitted at the time of vesting of Jamindari and later rent receipts were also issued vide Mutation Case No.3/15 of 1980-81 (Annexure-B to the counter affidavit of the opposite party). Thus the opposite Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 5 party claimed their possession over the disputed lands on the basis of redemption of mortgaged as well as on the basis of recent mutation order passed in their favour. Both the parties adduced their oral as well as documentary evidence in support of their respective claims before the learned Magistrate. The learned Magistrate has found and declared the possession of the 2nd party over the land in dispute vide order dated 22.04.1988 (Annexure-C to the counter affidavit of the opposite party). The petitioner challenged the aforesaid order dated 22.04.1988 passed by the learned Executive Magistrate in Cr. Rev. No.243/88, which was dismissed on 30.03.1994 confirming the order of the learned Magistrate (Annexure- D to the counter affidavit of the opposite party). Thereafter, the petitioner challenged both the orders of learned Executive Magistrate as well as the learned Additional Sessions Judge-V, Begusarai in Cr.W.J.C.No.554/94 before the Patna High Court, which was allowed vide order dated 4.07.1995 and the case was remanded to the learned Magistrate with direction that he will afford an opportunity to the parties to prove their documents and thereafter he will dispose of the proceeding Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 6 in accordance with law (Annexure-E to the counter affidavit). The opposite party filed S.L.P. in the Hon’ble Supreme Court vide S.L.P. (Cr.) No.356/96, which was later on dismissed (Annexure-G to the counter affidavit). In the meantime, the petitioner filed a petition in Misc. Case No.1523/81 under Section 145 Cr.P.C. before the learned S.D.M., Majhaul, Begusarai. The learned Magistrate passed an order on 23.01.1996 against the opposite party and declared the possession of the petitioner (Annexure-H to the counter affidavit). The opposite party challenged the aforesaid order dated 23.01.1996 vide Cr. Rev. No.14/97 before the learned Sessions Judge, which was heard and allowed vide order dated 30.07.1999 by the learned Additional Sessions Judge, F.T.C.VII, Begusarai and remanded the case before the learned S.D.M. for disposal in accordance with law. The learned S.D.M., Majhaul passed the order on 29.01.2001 in favour of the opposite party, which has been challenged in this criminal revision. Heard the learned counsel for the petitioner and the learned counsel for the opposite party. The learned counsel for the petitioner submits that Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 7 the learned Magistrate has not considered the oral as well as documentary evidence properly. He has further submitted that in a proceeding under Section 145 Cr.P.C. a Magistrate has to peruse the documents and affidavits filed in the case. The word ‘perused’ of course means to examine critically. In support of his contention, he has relied upon a decision in the case of Bhola Kumar and Ors. Vs. Bhubneshwar Singh reported in 1968 BLJR 327. The learned counsel for the 2nd party-opposite party has submitted that it is apparent from the impugned order that the learned Magistrate has considered the evidence adduced on behalf of both the parties. The documents have also been exhibited and marked as Exhibits on behalf of both the parties. The 1st party-petitioners have produced nine witnesses and the 2nd party has adduced seven witnesses. The learned Magistrate has considered the oral as well as documentary evidence adduced on behalf of both the parties and has come to the conclusion that the second party opposite party are in possession of the land in dispute and their possession has been declared and it has also been made clear that the order will remain in force Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 8 until any order is passed by any competent court. After hearing the learned counsel for both the parties and on perusal of the record, it appears that the contention of the learned counsel for the 2nd party opposite party is correct. The learned Magistrate has considered the oral as well as documentary evidence adduced on behalf of both the parties and has come to the conclusion that the second party opposite party is in possession of the land in dispute. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned order. This petition is dismissed. Patna High Court, Patna Dated the 22nd September, 2011 NAFR/V.K. Pandey ( Amaresh Kumar Lal, J.)