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1967 DIGILAW 132 (ALL)

Lakshmi Shankar v. Shiv Dayal

1967-04-14

J.N.TAKRU

body1967
ORDER J.N. Takru, J. - Sri Laxmi Shankar has filed this application in revision against the judgment and order of the learned Additional District Magistrate (J), Agra rejecting his revision application and refusing to make a reference to this Court against the judgment and order of Sri Shyam Sunder, a learned 1st Class Magistrate of Agra. 2. The brief facts giving rise to this revision are as follows: On 6-8-1962 Sri Sheo Dayal, one of the opposite-parties to this revision made an application to the Superintendent of Police Etawah stating that Sri Laxmi Shankar, the Applicant aforesaid, wanted to forcibly encroach upon his land which was surrounded by bamboo fencing and was being used for keeping his bamboos and Ghura, as a result of which there was an apprehension of breach of peace. The Superintendent of Police forwarded that application to the SHO Kotwali for enquiry and report. The SHO submitted his report, dated 12-8-1962, stating that both the parties were asserting their possession over the said land and there was imminent danger of breach of peace due to that dispute. Thereupon Sri R.D. Sharma, the learned City Magistrate, Etawah passed a preliminary order in respect of that land on 30-8-1962 and also ordered its attachment pending final decision of those proceedings. Accordingly the land in question was attached on 8-9-1962 and given in the superdigi of one Mohammad Ibrahim. Subsequently on 25-5-1963, an application was moved by Sri Krishna Swarup as guardian of his minor nephew Sri Ashok Kumar, contesting the claim of Sarvashri Sheo Dayal and Laxmi Shankar and praying that Sri Ashok Kumar be also made a party to those proceedings. The application was allowed and the same day all the parties were directed to file by 6-6-1963 all their evidence in support of their respective claims as regards the fact of actual possession over the disputed land, which they did. The learned Magistrate, different from the one who passed the preliminary order and order of attachment, after assessing the evidence adduced by the parties held that Sri Sheo Dayal was in possession over the subject-matter of the dispute on the date of the preliminary order and within two months next prior thereto. The learned Magistrate, different from the one who passed the preliminary order and order of attachment, after assessing the evidence adduced by the parties held that Sri Sheo Dayal was in possession over the subject-matter of the dispute on the date of the preliminary order and within two months next prior thereto. He, therefore, passed an order declaring Sri Sheo Dayal to be entitled to possession thereof restoring his possession thereto and forbidding all disturbance of such possession until his eviction therefrom in due course of law. Sri Laxmi Shankar went up in revision against that order to the court of the Additional District Magistrate (J), Agra and when he failed there as well, he filed the present revision in this Court. A similar revision application by Sri Krishna Swarup on behalf of his minor nephew was also rejected by the learned A.D.M. (J), Agra but as he appears to have submitted to the orders passed against him we are not concerned with him in this revision. 3. On behalf of the Applicant his Learned Counsel Sri B.S. Darbari vehemently contended that as the findings of the learned Magistrate were not passed upon any legally admissible evidence, they were perverse and liable to be set aside. After hearing the Learned Counsel for the parties I am, however, satisfied that the aforesaid contention has no merit. I shall, therefore, proceed to state my reasons for coming to that conclusion, after detailing the rival allegations of the parties. 4. Sri Laxmi Shankar's case is that he purchased 12 agricultural plots, bearing numbers 1435 to 1437, 1442, 1443 and 1445 to 1451 and comprising; a total area of 389 acres, by a registered sale-deed dated 29-4-1941 from Sarvashri Suresh Chandra and Harish Chandra and obtained possession of them thereafter. Subsequently on 9-6-1962 he sold some of those plots in their entirety and some in parts to the extent of 3.31 acres to the UP Roadways and prior thereto he had sold 37 acre out of some of those plots to a number of person. Thus after the sale to the UP Roadways, the Applicant had -02 acre in plot No. 1451, -07 acre in plot No. 1448 and 12 acre in plot No. 1450 (i.e. total 21 acre) left with him, which he enclosed by angle irons and barbed wire and was in possession of at all material times. Thus after the sale to the UP Roadways, the Applicant had -02 acre in plot No. 1451, -07 acre in plot No. 1448 and 12 acre in plot No. 1450 (i.e. total 21 acre) left with him, which he enclosed by angle irons and barbed wire and was in possession of at all material times. On 12-8-1962 Sri Sheo Dayal, with the help and assistance of a number of persons dismantled those angle irons and barbed wire and spirited away most of them, though some were still lying on the spot. According to Sri Laxmi Shankar Sri Sheo Dayal was never in possession of the disputed plot nor had he ever anything to do with it. 5. The case of Sheo Dayal was that the disputed plot was a part of plot No. 1454/3 having an area of 88 acre which had been in his possession for the past 22 or 23 years. Out of this area 52 acre towards the north was attached on 8-9-1962, thus leaving an area of 36 acre towards the south which was still in his possession and with which Sri Laxmi Shankar had no concern whatsoever. Both the parties filed affidavits and documents in support of their respective claims. Sri Sheo Dayal besides filing his affidavit filed the affidavits of ten other persons, while Sri Laxmi Shankar filed his own affidavit and the affidavits of seven other persons. In addition, both the parties filed Khasras and Sri Laxmi Shankar also filed the sale-deed dated 29-4-1941 in his favour and the sale deed dated 7-6-1962 executed by him in favour of the UP Roadways and a copy of a map. Thus the only thing to be seen is whether the finding of the learned Magistrate is supported by some legal evidence because if it is, then as held by this Court in Mukhram and Anr. v. State through Sumera 1951 ALJ 653. great weight should be attached to the opinion of the learned Magistrate who is answerable for the maintenance of peace in his jurisdiction as to whether there is danger of a breach of the peace or not. If he is so satisfied his order should be interfered with only very strong grounds. Where there was evidence in support of the conclusion arrived at by the learned Magistrate, his conclusion of fact should not be disturbed. 6. If he is so satisfied his order should be interfered with only very strong grounds. Where there was evidence in support of the conclusion arrived at by the learned Magistrate, his conclusion of fact should not be disturbed. 6. It is in the light of the aforesaid rule with which I respectfully agree, that I shall examine the evidence led by the parties. 7. The first piece of evidence to which reference has to be made is the "Fard Kurki" prepared by the S.H.O. Kotwali when he went to carry out the order of attachment. The Fard Kurki shows that the plot which was attached was uftada land measuring 192 ft. east-west and 50 ft. north-south and was bounded on the north by the land of Sri Laxmi Shankar, on the south-western corner of which stood a pucca brick pillar fixed with angle irons, on the south by the land of Sri Sheo Dayal, on the east by the house of Kali Charan Dhanuk and Bholey Kahar, on the east by the Naville Road; further that at the time of the attachment the said plot had bamboo fencing on its northern, eastern and western sides and on its southern side stood an old Ghoora, with trees growing on it. At the end of the Fard Kurki there is a note that Sri Lakhan Singh, who was present on behalf of Sri Laxmi Shankar at the time of the attachment, refused to sign the Fard Kurki as it did not mention the fact that some angle-irons were found lying near the land of Sri Laxmi Shankar; hence a note was being made that 8 angle-irons were found lying outside the attached plot towards its north eastern corner. Several important matters emerge from the recitals in the Fard Kurki (1) that it makes no mention of any pucca brick pillars, with or without angle-irons fixed to them, on any other side of the disputed plot except on its north-western corner, corresponding to the south western corner of Sri Laxmi Shankar's land to the north, (2) that it makes no mention of any holes or recently filled holes on any side of the disputed plot, which would have been found if only a month before the alleged brick pillars on those sides had been dismantled, (3) that there is no mention in it that the plot in dispute showed any signs of having been cultivated in the immediate or even near immediate past; on the contrary it bears out the assertion of Sri Sheo Dayal that on its southern side he had his ghoora, which was clearly quite old as trees were found growing on it and (4) that specifically mentions the presence of Bamboo fencing on three sides of that plot--the only unfenced side being in the direction in which the land of Sri Sheo Dayal is admittedly situate. In this connection it is noteworthy that in none of the affidavits filed on behalf of Sri Laxmi Shankar is there any hint even of the fact as to when that bamboo fencing was put up. Sri Sheo Dayal and his witnesses have sworn that the said fencing has been in existence since 1367F. The un controverted averment of the aforesaid witnesses on this most crucial aspect of the case disproves the assertion of Sri Laxmi Shankar's witnesses that they had been seeing angle-irons and barbed-wire all round this plot for the last 20-22 years and fully justifies the finding of the learned Magistrate that Sri Sheo Dayal was in possession of the same at all material times. 8. Sri Darbari urged three contentions against the aforesaid finding. His first contention was that as the police was siding with Sri Sheo Dayal the recitals in the Fard Kurki could not be implicitly relied upon. No weight can be attached to this contention as there is nothing on the record to bear it out. 9. The second contention was that as both the parties were claiming that the said plot was part of their undisputed plots Nos. No weight can be attached to this contention as there is nothing on the record to bear it out. 9. The second contention was that as both the parties were claiming that the said plot was part of their undisputed plots Nos. 144-8, 1450 and 1451 according to Sri Laxmi Shankar and No. 1454/3 according to Sheo Dayal--the only correct way of deciding that point was by getting the area surveyed and the plots measured. This contention also has no substance. The Applicant in his application to the Superintendent of Police gave the length, breadth and the boundaries of the disputed plot. In the preliminary order the length and breadth of the plot to be attached is not given but its area as also its boundaries are given. In the Fard Kurki, the length, breadth and boundaries of the attached land are given. Hence it is clear that the identity of the land in dispute was known to Sri Laxmi Shankar--a fact which is further made clear from the affidavits filed on his behalf--in all of which the attached plot is referred to as the plot in respect of which the dispute existed. In these circumstances I am unable to attach any importance to the contention that the learned Magistrate should have got the adjoining plots of the parties measured for ascertaining whether the disputed plot formed part of Sri Laxmi Shankar's plot or Sri Sheo Dayal's plot, particularly as the question which the learned Magistrate had to decide was only as regards the possession of the attached plot. The question whether the disputed plot formed part of this plot or that, would possess importance in a title suit but none whatsoever where the question to be decided is only that of possession. Hence the second contention must also fail. 10. The third contention of Sri Darbari was that as the affidavits filed by Sri Sheo Dayal were sworn to be true to the personal knowledge and belief of their deponents there was no specification in them as to which paragraph or paragraphs were true to personal knowledge and which were true to belief, they were not valid affidavits arm could not be seen in proof of the allegations contained therein. In support of this contention reliance was place on the decision in Emperor v. Lachmi Narain AIR 1947 All 235. In support of this contention reliance was place on the decision in Emperor v. Lachmi Narain AIR 1947 All 235. No doubt this decision supports Sri Darbari's; contention but it has no application to the present case as in it the contents of the affidavits are sworn to be correct to the personal knowledge and information and not the personal knowledge and belief of the deponents. There is a world of difference between 'belief and 'information', since in the former, personal knowledge and belief may not be the same in all cases, while in the latter they are so in all cases. Besides the ordinary dictionary meaning of the word 'knowledge' includes 'information' (see Cassells New English Dictionary). Hence 'knowledge' and 'information' have to be regarded as synonyms. I am, therefore, satisfied that the affidavits filed on behalf of Sri Sheo Dayal do not suffer from the infirmity urged by Sri Darbari. This contention also, therefore, fails. 11. Thus all the contentions advanced on behalf of Sri Lakshmi Shankar having been found to be untenable, this revision fails and is dismissed.