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Kumar Padhan and ors. Vs. Hara Bhoi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in35(1969)CLT1300; 1971CriLJ127
AppellantKumar Padhan and ors.
RespondentHara Bhoi and ors.
Cases ReferredGopi Harachandan v. RamakriBhna Palta
Excerpt:
.....(3) the affidavits filed by respective parties have not been critically examined and (4) the learned magistrate has failed +o understand and appreciate the contentions of respective parties and has come to an erroneous conclusion. 4. two other points raised by learned counsel for petitioners are that he has not considered the documents filed by either party nor has he critically examined the affidavits filed, in other words, the question is whether the learned magistrate has failed to exercise his jurisdiction properly in not critically examining the documents and affidavits filed in the case. the duty of the magistrate and the manner in which he has to consider the evidence has repeatedly come up for consideration before this court and the principles have been clearly enunciated...........2nd party for cultivation and payment of her share. as such, they claim to be in possession. the learned magistrate by the impugned order declared the possession of the disputed lands by the 1st party.2. learned counsel for petitioners assails the impugned order on the following grounds (1) there is no finding that the 1st party was in possession of the disputed lands on the date of the preliminary order; (2) the learned magistrate has not considered the documents filed by either party; (3) the affidavits filed by respective parties have not been critically examined and (4) the learned magistrate has failed +o understand and appreciate the contentions of respective parties and has come to an erroneous conclusion. there is consider. able force in each of the contentions raised on behalf.....
Judgment:
ORDER

A. Misra, J.

1. The members of the 2nd Party in the proceeding Under Section 145, Cr.PC are the petitioners. The subject-matter of dispute is 23.84 acres in holding No. 11 of village Changuria. The brief facts of the case are that one Bhuban Padhan had five sons and he left certain lands in village Dubalababal as well as 47.82 acres in village Changuria. After the death of Bhuban, the disputed lands measuring 23 and odd acres in Changuria were possessed by Mahadeb, one of the sons of Bhuban, while the remaining lands in Dubala-bahal and Changuria were possessed by members representing the other four branches. Mahadeb died leaving his widow Gharjugi and three daughters Hara, Sushila and Pira. These daughters, besides the son of Hara and the husbands of the two other daughters constitute members of the 1st party. They claim to be in possession of the disputed lands. On the other hand, the members of the 2nd party who represent the remaining four branches allege that the properties in both the villages Stand jointly recorded, though for the sake convenience, each of them possessed portions according to their respective shares. In Changuria, Mahadeb possessed 9 and odd acres which after his death was possessed by his widow Gharjugi who left far her patent's house and entrusted the lands to some members of the 2nd party for cultivation and payment of her share. As such, they claim to be in possession. The learned Magistrate by the impugned order declared the possession of the disputed lands by the 1st party.

2. learned Counsel for petitioners assails the impugned order on the following grounds (1) there is no finding that the 1st party was in possession of the disputed lands on the date of the preliminary order; (2) the learned Magistrate has not considered the documents filed by either party; (3) the affidavits filed by respective parties have not been critically examined and (4) the learned Magistrate has failed +o understand and appreciate the contentions of respective parties and has come to an erroneous conclusion. There is consider. able force in each of the contentions raised on behalf of petitioners.

3. The scope of an enquiry in a proceeding Under Section 145, Criminal P.C., is limited. Ho has to decide on enquiry and give a finding as to whether any and which of the parties was in actual possession of the subject-matter of dispute on the date of the preliminary order, the only exception being, where one of the parties has been forcibly and wrongfully dispossessed within two months preceding the date of the order, in which case, the Magistrate has to treat such person as having been in possession at the date of the preliminary order under the second proviso to Sub-section (4). The question of possession is to be decided by him irrespective of the merits of the claim of any of the parties to their right to possess the subject-matter, i.e irrespective of their title to the properties. In the present case, the finding of the learned Magistrate on the question of possession in the concluding paragraph of his order is as follows:

In the light of the discussion made above, I am of the opinion that the members of the 2nd party were not in possession of the disputed lands before two months of the preliminary order. It is therefore ordered that the 1st party is declared entitled to possession of the disputed lands until evicted therefrom in due course of law.

The learned Magistrate has. not found as to which of the parties was in actual possession on the date of the preliminary order or within two months preceding the said date, if it was a case of forcible and wrongful dispossession. Thi3 infirmity itself is sufficient to quash the order.

4. Two other points raised by learned Counsel for petitioners are that he has not considered the documents filed by either party nor has he critically examined the affidavits filed, In other words, the question is whether the learned Magistrate has failed to exercise his jurisdiction properly in not critically examining the documents and affidavits filed in the case. The duty of the Magistrate and the manner in which he has to consider the evidence has repeatedly come up for consideration before this Court and the principles have been clearly enunciated. Section 145 (4), Criminal P.C., lays down the manner of enquiry to be -adopted to determine the question of possession. It requires that the Magistrate is to pursue the statements, documents and affidavits put in and hear the parties. In the decision reported in : AIR1965Ori208 , Murli Patel v. Purushottam Bhati, the meaning of the word 'pursue' wag examined and explained as follows:

When affidavits substitute evidence, it is the bounden duty of the Magistrate to exa-mine carefully the affidavits of each deponent. He must give clear reasons for accepting or rejecting the affidavits as is done in weighing oral evidence. The order of the Magistrate must indicate that he had applied his mind to the affidavits. No hard and fast rule can be laid down as to bow the affidavits are to be assessed, but all that is to be emphasised is that the affidivits cannot be dealt in a perfunctory manner by general observations. The salutary principle is that they should be weighed as oral evidence was being done prior to the amendment.

These principles were re affirmed by this Court in the decision-reported in (1967) 33 Out L T 1098, Gopi Harachandan v. RamakriBhna Palta-aingh.

5. These being the principles of law, it is now to be seen how far the learned Magistrate has complied with the requirements. A number of documents including rent receipts were filed on behalf of the 2nd party, and so also, a number of documents were filed by the 1st party. Ten affidavits were filed on behalf of the 1st party and a number of affidavits were filed on behalf of the 2nd party. Besides referring to one document which purports to have been executed by Gharjugi, the learned Magistrate has not considered any of the other documents nor has he dealt with or critically examined the affidavits filed by respective parties. learned Counsel for opposite parties concedes that the learned Magistrate ha3 not considered the documents or affidavits filed by respective parties which it is his bounden duty to do for arriving at his conclusion on the question of possession. Therefore, apart from his finding regarding possession not being in (accordance with law, the learned Magistrate has failed to exercise his jurisdiction properly by not critically examining the affidavits and the documents filed by respective parties and dealing with the whole matter in a perfunctory manner.

6. Hence, I allow the revision, set aside the order of the learned Magistrate and direct that the case be remanded for disposal according to law. The learned Magistrate is directed to critically examine the documents and affidavits filed by respective parties and come to a finding on the question whether any, and if so, which of the parties was in possession of the disputed lands on the date of the preliminary order. It is represented by both sides that the proceeding has been pending since a long time and the lands which form the subject-matter of dispute are lying fallow resulting in loss to the parties. The learned Magistrate may appoint a receiver for the lands and is directed to dispose of the proceeding within a period of two months.


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