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Madhya Pradesh High Court · body

1960 DIGILAW 329 (MP)

Dayaram v. Rampal

1960-10-18

S.B.SEN

body1960
ORDER S.B. Sen, J. This is a reference arising out of the proceedings under section 145, Criminal Procedure Code. Dayaram and Mayaram, hereinafter described as party No. 2, and Ramlal and Hiralal, similarly described as party No. 1, are both claiming to be in possession of the disputed land Khata No. 47, Khasra Nos. 60/3, 60/7, 71/1 and 71/2 measuring 2.48 acres in Mauza Badya. There is no dispute that there was a likelihood of the breach of peace on account of both these parties claiming the property and that the Magistrate before whom the Police instituted proceedings was justified in taking action' under section 145, Criminal Procedure Code. After passing this order which is not challenged, the Magistrate in due course asked the parties to file affidavits and documents and then passed a final order declaring party No. 1 viz. Ramlal and Hiralal to be in lawful possession. Party No. 2 challenged this order before the Sessions Court Mandleshwar, who has not agreed with the finding of the Magistrate, and has referred this case for quashing of the order. The ground on which the Sessions Judge wants this Court to set aside the order dated 29-9-1959 declaring party No. 1 to be in possession is because it is illegal, being manifestly wrong and perverse. I cannot agree with the views expressed by the Additional Sessions Judge. A perusal of the order of the learned Magistrate will show that he has passed the order after taking into consideration the mortgage-deed, Khasra entry as well as the affidavits and documents filed by the parties. It is not necessary for the Magistrate to give the details as to how he has come to this conclusion in a proceeding under section 145, Criminal Procedure Code. The Magistrate has also taken the view which is not inconsistent with judicial practice so far as the mortgage-deed is concerned. It is quite possible that the learned Sessions Judge may legitimately hold a different view on the same documents and same evidence; but that is not sufficient for an interference in a proceeding under section 145, Criminal Procedure Code. The learned Sessions Judge's view, that the Magistrate was not justified in holding that the mortgage being old it was difficult whether the possession could have been continued, cannot be accepted. The learned Sessions Judge's view, that the Magistrate was not justified in holding that the mortgage being old it was difficult whether the possession could have been continued, cannot be accepted. The presumption regarding possession, on the basis of the Khata entries, i.e. only a piece of evidence and the Magistrate has also taken the same into consideration. It is also not proper to say that the Magistrate has brushed aside the affidavits filed by the parties. In my view there are some materials on record and the High Court, as a Court of revision, should not interfere with the decision of a trial Court on the fact of possession. It is only, if the finding of the Magistrate as to possession is based on no material at all then the High Court can interfere with his order. In fact, as I have already said, there is some evidence and one cannot say that the conclusion arrived at by the Magistrate is manifestly wrong or perverse. I do not think there is any sufficient ground to interfere with the order of the Magistrate. The reference is therefore rejected.