Dhani Ram v. Kripa Shanker — 1984 DIGILAW 1048 (ALL)

JUDGMENT KAMLESHWAR NATH, J. 1. THIS is a revision under Section 435/439 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) arising out of proceedings under Section 145 of that Code in respect of a dilapidated house in village Teonga P.S. Kotwali district Pratapgarh. The disputed house alongwith its land originally belonged to one Lahuri, cousin brother of revisionist Dhani Ram and opposite party no. 10 Ram Bahore, who had filed an application for proceedings under Section 145 of the old Criminal Procedure Code on 14-9-1969. Lahuri died sometime late in 1967. Dhani Ram and Ram Bahore, being his cousin brothers, claimed to have entered into possession of the property. In consolidation proceedings, this property came into question. During the pendency of those proceedings, Shobh Nath etc. surrounded the house with barbed wire fencing in respect of which the revisionist made an application before the concerned consolidation officer. It was urged in the application under Section 145 Cr PC that in order to encroach upon the other abadi land of the revisionist, the opposite parties started extending the barbed wire fencing on 13-9-1969 and on resistance gave a beating to the revisionist. They, therefore, prayed for proceedings under Section 145 Cr PC. The Station Officer P. S. Kotwali reported that there was an apprehension of breach of peace. On 19-9-1969, the Sub Divisional Magistrate concerned passed the preliminary order. The property was attached and given in supurdgi of some person on 30-9-1969. 2. DHANI Ram and Ram Bahore filed affidavits of Sukkhoo, Nanku. Ram Kishore, Ram Dayal, Bhaiya Ram, Smt. Bhagwanti and one of themselves, namely, DHANI Ram, The opposite parties filed affidavits of Hari Narain, Rameshwar, Ram Kripal, Shobh Nath and Kripa Sahnker. Certain documents also appear to have been filed on behalf of both the parties. 3. A reference was made to the Civil Court by the Sub Divisional Magistrate which returned a finding in favour of the revisionist on 17-2-1971 and on that basis, the Sub- Divisional Magistrate directed on 25-2-1971 that the property be released in favour of Ram Dhani and Ram Bahore. A revision by the opposite parties having been dismissed, a second revision was filed before the High Court which by order dated 22-2-1973, directed that the question of apprehension of brach of peace be decided and thereafter the case be decided afresh in accordance with law. 4. A revision by the opposite parties having been dismissed, a second revision was filed before the High Court which by order dated 22-2-1973, directed that the question of apprehension of brach of peace be decided and thereafter the case be decided afresh in accordance with law. 4. THIS time the Sub Divisional Magistrate on 2-6-1978 found that there was no apprehension of breach of peace and dropped the proceedings. The revisionist filed a revision to the Court of Sessions Judge who held by order dated 2-9-1978 that there was apprehension of breach of peace and directed the Magistrate to decide the case on merits. THIS time the Magistrate did not refer the matter to the Civil Court and held by order date 3-3-1981 that the opposite parties had been in possession and directed the property to be released in their favour. A revision by the: petitioner to the Sessions Judge was dismissed by order dated 4-11-1982 by the IIIrd Addl. Sessions Judge giving rise to this revision. The learned counsel for the revisionist has urged that the Magistrate has not applied his mind to the evidence on the record and had principally based his decision on inadmissible piece of evidence. The learned counsel for the opposite parties contends that objection to the admissibility of evidence had not been made before the lower Court and the Magistrate had applied his mind to the evidence on the record. In order to appreciate the contending view points, it is necessary to consider the decision of the Magistrate vis-a-vis the material on record at some length. 5. THE Magistrate mentioned that according to the petition under Section 14S Cr PC, Lahuri, Ram Bahore and Dhani Ram had their three separate houses surrounded by one embankment (Khaai) from the time of their ancestors; that since the death of Lahuri about three years earlier Ram Bahore and Dhani Ram had been in possession of Lahuri's house and abadi land, and that the house of opposite party Shobh Nath etc. was towards west separated by the Khaai. It was further stated that the opposite parties, despite being government servants, were behaving contrary to law, fearlessly and during the pendency of the consolidation proceedings, had forcibly demolished some of the Khaai and had constructed barbed wire fencing around the house of Lahuri of which the applicants had made an application before the consolidation officer. It was further stated that the opposite parties, despite being government servants, were behaving contrary to law, fearlessly and during the pendency of the consolidation proceedings, had forcibly demolished some of the Khaai and had constructed barbed wire fencing around the house of Lahuri of which the applicants had made an application before the consolidation officer. Lastly, according to the applicants, the opposite parties started extending their barbed wire fencing in order to take unlawful possession over the other abadi land of the applicants and used force including beating to them. For this reason, they prayed for action under Section 145 Cr PC. 6. IT may be mentioned here that opposite party no. 1 Kripa Shanker was a Jailor, opposite parties 2 and 3 Laxmi Shanker and Shiv Shanker are his brothers, that Shobh Nath opposite party no. 4 was Chief Revenue Accountant and opposite party no. 5 Kalp Nath was his brother. The relationship of opposite parties 6 to 9 with them is not quite clear. The Magistrate then referred to the written statement dated 6-10-1969 of the opposite parties where the allegation;; of the applicants had been denied and is was stated that except the house and land of the house of Shobh Nath surrounded by barbed wires, the rest of the land was the abadi of Kripa Shanker whose father had permitted Badal to construct a house in his land and to live therein. He further mentioned that according to the written statement of the opposite parties, Badal's son, Lahuri, continued to live in the house but long ago when the house fell down, Kripa Shanker's father Anant Ram, again took possession over it, and on 26-6-1969, Kripa Shanker surrounded the land with barbed wire and Khaai. Thus on 14-9-1969, the opposite parties had been in possession of the property for more than two months and, therefore, the application under Section 145 Cr PC was not maintainable. 7. THE Magistrate further mentioned that; according to the opposite parties, Lahuri's daughter was alive and therefore, Dhani Ram etc. had no right or interest in the property. 8. THE Magistrate mentioned that according to the Chakbandi Kharsa, existence of the houses of Lahuri, Badal, well and trees of Dhanl Ram and abadi and well of Ram Bahore had been alleged in plot no. had no right or interest in the property. 8. THE Magistrate mentioned that according to the Chakbandi Kharsa, existence of the houses of Lahuri, Badal, well and trees of Dhanl Ram and abadi and well of Ram Bahore had been alleged in plot no. 23/1 while possession of Shobh Nath for five years and that of Dhani Ram was alleged on plot no. 23/2, that there was a written statement dated 2-6-1954 of Anant Ram, the father of Kripa Shanker, in which the existence of the house of Badal in plot no. 23 had been admitted, which was also admitted by Shobh Nath, that according to the third settlement khasra the land was paiti and that the consolidation officer had held that the land was abadi and was not grove. He then referred to a report dated 8-12-1969 of the Harijan and Social Welfare Officer mentioning that the house of Lahuri was lying as Khandhar and razed to the ground, and the place used for growing vegetables etc. by Shobh Nath and Kripa Shanker surrounded by them by barbed wires who had also built a room on the site of the Aanwa (the potter's kiln used for backing earthren pots). This report was forwarded by the District Magistrate on 16-12-1969 to the Sub-Divisional Magistrate. 9. THE Magistrate then mentioned that the affidavits filed by Dhani Ram, Sukkhoo, Nanku, Ram Kishore, Ram Dayal, Bhaiya Ram and Smt. Bhagwanti filed by the revisionist supported his case, while the affidavits of Kripa Shanker, Shobh Nath, Hari Narain, Rameshwar and Ram Kripal Pandey filed by the opposite parties supported the cases of the opposite parties. 10. HAVING said so, the Magistrate observed that he heard the parties' counsel and went through the material on the record and added that for the disposal of the question of possession, the statement dated 7-12-1965 of Dhani Ram and the affidavit of Smt. Bhagwanti were the principal documents. He said that Dhani Ram had admitted that Shobh Nath beat and drove away Lahuri and locked the house and, therefore, Dhani Ram could not have been in possession of the property as stated in his application dated 14-6-1969. He then observed that according to the affidavit dated 12-1-1976 of Smt. Bhagwanti, the sister of Lahuri, Lahuri had died nine years earlier (i.e. sometime in 1967) whereupon she had given the key of the house to Dhani Ram. He then observed that according to the affidavit dated 12-1-1976 of Smt. Bhagwanti, the sister of Lahuri, Lahuri had died nine years earlier (i.e. sometime in 1967) whereupon she had given the key of the house to Dhani Ram. The Magistrate observed that this statement of Smt. Bhagwanti was contrary to the statement dated 7-12-1965 of Dhani Ram that: the opposite parties had already driven away Lahuri and had locked the house and, therefore, Smt. Bhagwanti could have no opportunity of locking the [house or giving its key to Dhani Ram in 1967. On this basis, the learned Magistrate held that the opposite parties had been in possession of the property not only two months before the preliminary order but also for several years before and that the entire quarrel was due to the obstinacy of Dhani Ram and Ram Bahore. For these reasons, he directed the property to be released to the opposite parties. The learned Additional Sessions Judge considered the question as to whether the Magistrate was not competent to decide the question of possession on merits but was bound to follow the findings of the Civil Court. He repelled the contention on behalf of the revisionist on the basis of the decision of this Court in the earlier revision inter parties where it had been held that the entire proceedings after the passing of the preliminary order was without jurisdiction because the question of existence of the; apprehension of breach of peace had not been decided by the Magistrate. The Additional Sessions Judge, therefore, held that the finding of the Civil Court was without jurisdiction and, therefore, the Magistrate was competent to decide the question of possession after he had held that there was apprehension of breach of peace. Having thus held, the learned Additional Sessions Judge remarked that no other point was raised by the counsel for the revisionist before him. He remarked that he bad given a careful consideration to the evidence on the record and he did not find any illegality or irregularity in the judgment of the trial Court and, therefore, did not think it necessary to interfere with the finding of fact recorded by the Magistrate. On this basis, he dismissed the revision. 11. He remarked that he bad given a careful consideration to the evidence on the record and he did not find any illegality or irregularity in the judgment of the trial Court and, therefore, did not think it necessary to interfere with the finding of fact recorded by the Magistrate. On this basis, he dismissed the revision. 11. IT is obvious that the learned Magistrate having mentioned that the affidavits filed on either side supported then cases basically rested his finding on a statement dated 7-12-1965 of Dhani Ram and the affidavit dated 12-1-1976 of Smt. Bbagwanti, sister of Lahuri. 12. THE learned counsel for the revisionist has correctly pointed out that the statement dated 7-12-1965 of Dhani Ram was not admissible in evidence. It is a copy of a statement purported to have been made on oath to the Station Officer of Kotwali Pratapgarh, in connection with a complaint made by Dhani Ram to the Chief Secretary of Government of U.P. against Shobh Nath opposite party, his son Sharda Prasad then a Revenue Ahalmad of the S. D. O. Patti, Pratapgarh and his brother-in-law's son Hriday Narain, an Ahalmad in the Collectorate, Record Room. This statement was filed by the opposite parties on 10-6-1976 alongwith a copy of the said complaint dated 12-11-1965 of Dhani Ram and the report; dated 9-12-1965 of Station Officer Kotwali on that complaint. THE record does not contain any application through which prayer for admitting these documents on record was taken; it contains only an affidavit of the same date (10-6-1976) of Kripa Shanker in paragraph 4 of which, he had stated that on the entire abadi of Lahuri, Kripa Shanker's father had taken possession before Lahuri's death and on Lahuri's house, after Lahuri's death, when three years old daughter of Lahuri was alive. In paragraph 5, it was stated that Dhani Ram had made that complaint to the Chief Secretary and Lahuri had also made a complaint dated 18-7-1967 to the Commissioner of Faizabad Division whose copy also he annexed. Apart from the fact that the material on record does not show that revisionist had any opportunity of meeting any of these documents, it is abundantly clear that the statement of Dhani Ram made on oath to the Station Officer of the police station Kotwali could neither constitute legal evidence nor could be admissible in evidence. Apart from the fact that the material on record does not show that revisionist had any opportunity of meeting any of these documents, it is abundantly clear that the statement of Dhani Ram made on oath to the Station Officer of the police station Kotwali could neither constitute legal evidence nor could be admissible in evidence. THE Station Officer obviously had no authority to administer any oath; the statement was by no means in the course of any judicial proceedings. The injustice caused by the acceptance of this alleged statement dated 7-12-1965 of Dhani Ram in evidence may be indicated immediately. The statement said that about 14 months earlier (i.e. about October, 1964) Lahuri was locked up as insane and when he came out of the Jail Lahuri proclaimed that Shobh Nath had kept his wife and therefore, he had beaten Shobh Nath. It added that when he asked Shobh Nath, the latter remonstrated with him, beat and drove out Lahuri. and locked the house and that they had been threatening him (Dhani Ram) to kill him unless he ran away like Lahuri and left the house. On the contrary, the own affidavits of the opposite parties would show that Lahuri continued to be in possession of the house till his death and after his death, his widow used to live in the house. Paragraph 2 of the affidavit dated 26-12-1975 of Kripa Shanker mentions that his father (Anand Ram) had constructed a room and had given it out to Badal, the father of Lahuri as his Halwaha and Badal followed by Lahuri used to live in it. The affidavit went on to say that Lahuri died 10 years earlier (i.e. round about 1965) and then his wife and daughter lived therein but the lady surrendered the entire abadi to bis father (Anant Ram) 8 years ago, and then his father locked the house and used it in various ways. Now, the statement in the affidavit dated 26-12-1975 that Lahuri died 10 years earlier is patently incorrect because on the own showing of the opposite parties, Lahuri had made a complaint against the opposite parties on 18-7-1967 to the Commissioner of Faizabad Division. The affidavit dated 12-1-1976 of Smt. Bhagwanti would also bring the period of death of Lahuri to the later period of 1967. The affidavit dated 12-1-1976 of Smt. Bhagwanti would also bring the period of death of Lahuri to the later period of 1967. Again according to the affidavit of Kripa Shanker, the widow and daughter of Lahuri should have continued to live in the house of Lahuri for about 2 years after his death and before she might have surrendered it to the father of Kripa Shanker. Thus, Anant Ram. or Kripa Shanker, could not have entered into possession of the property (ill sometime in 1969. 13. IN this connection, it may be added that paragraph 3 of the affidavit dated 26-12-1975 of Har Narain in support of the opposite parties states almost the same facts. Thus, on the own showing of the opposite parties, Lahuri had been in possession of the property till he died and the property remained in the possession at least of his wife and daughter till sometime in 1969, the year in which the proceedings under section 145 Cr PC commenced. With these admitted facts, reliance by the learned Magistrate on the inadmissible alleged statement dated 7-12-1965 of Dhani Ram has caused a clear failure of justice and cannot be protected by the provisions of Section 167 of the Evidence Act. 14. IN the affidavit dated 12-1-1976 of Smt. Bhagwanti, the sister of Lahuri, referred to by the learned Magistrate, ill was stated that Lahuri had died 9 years earlier in the hospital. The fact of death of Lahuri in the hospital is admitted in the affidavits dated 26-12-1975 of Kripa Shanker and Hari Narain. The lady said that on receiving information of Lahuri's death, she arrived and lived in the house of Lahuri with Lahuri's wife for one month. Thereafter, Lahuri's wife gave the lock and key of the house to her and shifted to her Naihar. Smt- Bhagwanti added that she waited for one month for Lahuri's widow's return, but, on the contrary she received information, from her Naihar that the widow had married one Rameshwar and would not return to her village. Smt. Bhagwanti said that thereupon she delivered the key of the house along with the household goods to Dhani Ram and Ram Bahore and that the opposite parties had nothing to do with the house or the abadi of Lahuri. Smt. Bhagwanti said that thereupon she delivered the key of the house along with the household goods to Dhani Ram and Ram Bahore and that the opposite parties had nothing to do with the house or the abadi of Lahuri. This statement of Smt. Bhagwanti was disbelieved by the Magistrate because he found it to be inconsistent with the inadmissible statement dated 7-12-1965 of Dhani Ram referred to above. The upshot is that the learned Magistrate, on the one hand, relied upon inadmissible evidence on the record and on the other band has not considered or discussed the important material evidence on the record. It is not enough for the learned Magistrate simply to say that he has gone through the record; the judgment must contain, a discussion of the evidence and indicate an application of mind to the material evidence on the record. In the case of Ram Naresh v. State, 1970 ACRR 461 the duty of the Magistrate in this direction has been clearly set forth. It is equally well- settled that a decision which rests on inadmissible evidence cannot be sustained and is liable to be interfered with in a revision before the High Court. In the case of Govind v. State, 1969 Cr LJ 963 an affidavit which could not have been verified by an Oath Commissioner was verified by the Oath Commissioner and was held by this court to be inadmissible in evidence. It was held that the proceedings were vitiated because of acceptance of evidence which was legally inadmissible. The Magistrate's order was set aside and the case was remanded for rehearing. The present case must meet the same fate. 15. IT is unfortunate that this litigation had been pending for such a long time mainly because the Magistrates who heard the case from time to time did not apply their mind to the applicable law or the facts of the case. The least that the Magistrate is to do is to ensure that no document is considered which is not admissible in evidence or proved in accordance with law, or In respect of which the other party had no opportunity to put evidence in rebuttal. The least that the Magistrate is to do is to ensure that no document is considered which is not admissible in evidence or proved in accordance with law, or In respect of which the other party had no opportunity to put evidence in rebuttal. The proper thing to do for the Magistrate now would be to peruse the documents filed by both the parties in their presence, exclude those which are not admissible in evidence or which are not proved, mark those documents as exhibits which are proved and are admissible in evidence, give opportunity to either side to meet such of the documentary evidence in respect of which they did not have an opportunity thus for, and after giving an opportunity of hearing to both the parties decide the case after adequately discussing the legal evidence on the record. 16. THE revision is allowed, the orders dated 3-3-1981 of the Executive Magistrate 1st Class, Pratapgrah, and dated 4-11-1982 of the Third Additional Sessions Judge, Pratapgarh are set aside. THE case is remanded to the Sub- Divisional Magistrate concerned for rehearing: and disposal in accordance with law and bearing in mind the observations contained in this judgment. THE parties are directed to appear before the S.D.M. concerned on 10-1-1985. THE office will send down the lower court record immediately. Revision allowed.