IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.703 of 2007 PRABHU SAH SON OF LATE GAYA SAH RESIDENT OF VILLAGE- RAMPURAWA, POLICE STATION- MAINATAND, DISTRICT- WEST CHAMPARAN. Versus 1. SHESHA SAH 2. BHAGWAT SAH, 3. MAHENDRA SAH ALL SONS OF MISHRI SAH. 4. LALAN SAH 5. BIJLI SAH 6. MADAN SAH ALL SONS OF SHESH SAH. 7. DASHRATH SAH SON OF BHAGWAT SAH ALL RESIDENTS OF VILLAGE- RAMPURWA, POLICE STATION- MAINTAND, DISTRICT- WEST CHAMPARAN. For the petitioner : Mr. Sanjay Kumar Verma, Advocate. For the O.Ps : Mr. Binay Kant Mani Tripathi, Advocate. For the State : Mr. Bhanu Pratap Singh, APP ----------- 5 15.07.2010 Heard both sides. Petitioner, who is the first party to the proceeding initiated under section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code), is aggrieved by the order dated 11.11.2006 passed by the learned Sub-Divisional Magistrate, Narkatiaganj, District- West Champaran in Case no. 704 of 2001 (Prabhu Sah versus Shesha Sah & Ors). It appears that initially on the basis of an application filed by the first party, a proceeding under Section 144 Cr.P.C. was initiated. Police report was called for. On a consideration of the materials available on record, the said proceeding was converted into one under Section 145 of the Code. Parties were given opportunities to lead evidence and bring on record documents in support of their respective claims. The dispute 2 pertains to two pieces of land of khata no. 55 khesra no. 102 measuring an area of 9 kathas and khata no. 56 and khesra no. 608 measuring an area of 7 kathas. According to the first party, the lands in dispute were purchased by them from son-in-law and grand daughter of one Radhika Devi who was one of the daughters of the recorded tenant. According to the second party, the land in dispute belong to khatiyani raiyat who had three daughters namely Radhika Devi, Kaushalya Devi and Rukmini Devi. Radhika Devi after marriage shifted to Nepal. The two others sisters namely Kaushla Devi and Rukmini Devi therefore remained in possession of the land and subsequently Kaushala Devi gifted the disputed land to her daughters. Learned Magistrate on a consideration of the materials placed on record including the oral evidence adduced on behalf of the parties came to the conclusion that the members of the second party were in possession of the lands in question. Accordingly, the possession was declared and it was clarified that the same shall remain effective till the matter is adjudicated otherwise by a competent Civil Court. While assailing the order impugned, learned counsel for the petitioner submits that the order impugned is bad in law as the learned Magistrate has placed reliance on the documents placed have not been properly proved and brought on record. He relies on judgment of this Court reported in 1993 (2) B.L.J. 150 3 (Dilip Kumar Rai versus Jai Prakash Rai). Learned counsel appearing on behalf of the opposite parties (second party) submits that a perusal of the order impugned would show that the learned Magistrate has carefully evaluated the oral evidence adduced by the parties and has, for adequate reasons, not placed reliance on the oral evidence adduced on behalf of the first party. I have heard learned counsel for the parties and perused the materials on record. It appears that four witnesses were examined on behalf of the petitioner (first party). Learned Magistrate has evaluated the oral evidence of each of them and has not found them trustworthy for the reasons assigned in the order itself. On the contrary, second party (opposite parties herein) adduced evidence of five witnesses. P.W. 2 Bhagwat Sah is the second party in the court below. His evidence has been considered in paragraph 5. On an evaluation of the evidence brought on record by the parties, learned court below has taken a view that the claim of possession made by members of second party (opposite parties herein) was justified and proved on the strength of oral evidence brought on record the 2nd party . It has, however, been observed further that the documents placed on record by the second party also lend credence to their evidence. In that view of the matter, this court is of the view that the order impugned cannot be said to be illegal and/or perverse. This Court is, therefore, not inclined to interfere with the order 4 impugned. This Court, however, observes that any finding and/or observation made in the impugned order relating to the validity of the document and/or title of the parties to hold the land in question shall not prejudice any of them in the suit. pkj ( Kishore K. Mandal, J. )