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1991 DIGILAW 372 (PAT)

Chandradeo Harijan v. State Of Bihar

1991-09-13

SHAMIMUL HODA

body1991
Judgment SHAMIMUL HODA, J. 1. This application under Sections 397 and 401 of the Code of Criminal Procedure is directed against the order dated 30th June, 1990 passed by Sri R. B. Prasad, Executive Magistrate, Siwan, in Tr. No. 68 of 1989 by which he has declared the possession of the opposite parties in a proceeding under Section 145 of the Code of Criminal Procedure. 2. The disputed land is 2 katha 8 dhurs on the eastern portion of Revisional Survey Plot No. 2041 under Khata No. 251 having an area of 7 Katha 16 dhurs of village Bhagar, Police Station Siwan is the district of Siwan. According to the case of the prosecution the Revisional Survey Plot No. 2041 stands in the record of right in name of the Ram Lagan Chamar, father of the petitioner. The ancestors of second party i.e. Opposite party Nos. 2 to 4, who are the Maliks settled the land in favour of Ram Lagan Chamar in the year 1956. The estate vested in the State of Bihar and the Maliks submitted Jamabandi in the name of Ram Lagan Chamar and, accordingly, Register-II was prepared and he paid the rent to the State of Bihar and after his death the petitioner is paying the rent to the State of Bihar and the rent receipts are in the possession of the petitioner. The further case of the petitioner is that prior to vesting of the father of the petitioner had been paying rent to the ancestors of the opposite parties and he was granted rent receipts in his name. On 22-7-87 father of the petitioner executed a mortgage deed in favour of one Radha Mohan Sah with respect to 3 Kathas of the aforesaid plot number for a sum of Rs. 100/- and the same was redeemed in the year 1954. Ram Lagan Chamar executed a sale with respect to 3 Kathas of Revisional Survey Plot No. 2041 in favour of Ram Briksh Mistry and Chandradeo Mistry of village Bhagar in the 1953 and from the date of sale deed Ram Briksh Mistry and Chandradeo Mistry are coming in peaceful possession of the aforesaid 3 Kathas of land and they have also got their names mutated and paying rent to the State of Bihar. In the year 1969-70 when Public Works Department pitch road was extended some of the proceeding land was acquired by the Public Works Department and Award was prepared in the name of Raja Chamar, brother of the petitioner, and compensation was, accordingly, paid. The case of opposite party Nos. 2 to 4 is that the father of the petitioner was in need of money and as such on 18-11-1927 along with other lands he sold 3 Kathas 12 dhurs out of the disputed plot to Rajeshwar Singh and Ram Darshan Singh and put them in possession. Rajeshwar Singh sold his land to Dilla Mian in the year 1940 and put him in possession and the rent receipt is being issued in the name of Dilla Mian. The opposite parties (2 to 4) are coming in possession of the disputed land and paying rent to the State of Bihar. 3. It appears that on 10-12-1982 a proceeding under Section 144 of the Code of Criminal Procedure was initiated with regard to 2 Kathas 8 dhurs of land of plot No. 2041 Khata No. 251. Both the parties filed their show cause. On 19-4-1983 the Section 144 proceeding was converted into proceeding under Section 145 of the Code of Criminal Procedure. Both the parties filed their written statements and produced oral as well as documentary evidence before the learned Magistrate. The learned Magistrate, on a consideration of the materials on the record passed the impugned order declaring the possession of the Opposite party Nos. 2 to 4 on the disputed plot. 4. Mr. Udit Narain Singh, learned counsel appearing on behalf of the petitioner, inter alia, has submitted that the order of the learned) Magistrate is bad in law as the documents filed by the petitioner (first party) have not been considered at all. It is further submitted that learned Court, by order dated 30th May, 1987 refused to take into consideration the order passed in another proceeding under Section 145 of the Code of Criminal Procedure in which the petitioner was not the party but while passing final order he has considered that order also and this vitiates the entire order. 5. Learned counsel appearing on behalf of party Nos. 2 to 4 has submitted that the learned Magistrate has considered the oral evidence and on the basis of the evidence found the possession of Opposite party Nos. 2 to 4. 5. Learned counsel appearing on behalf of party Nos. 2 to 4 has submitted that the learned Magistrate has considered the oral evidence and on the basis of the evidence found the possession of Opposite party Nos. 2 to 4. So far the documentary evidences are concerned they relate to question of title and it was not necessary for the Magistrate to consider them as in the proceeding only question of possession was to be seen and as such the Magistrate. on the basis of oral evidence, has passed the impugned order. 6. To substantiate his argument learned counsel for the petitioner has placed the impugned order passed by the learned Magistrate. From the perusal of the order it appears that the learned Magistrate has only enumerated the documents filed by the petitioner and has given no reason as to why he has refused to take into consideration the documents filed by the petitioner. From perusal of the order it further appears that the learned Magistrate, on the basis of the oral evidence, has held that the oral evidence adduced by the second party i.e. Opposite Party Nos. 2 to 4 is superior than the evidence produced by the petitioner-first party. 7. It is well-settled that the Magistrate, while deciding the question of possession in a proceeding under Section 145 of the Code of Criminal Procedure, is bound to consider the written statement, the oral evidence and the documentary evidence adduced before him. Failure to consider either of the materials by the learned Magistrate will render the order a nullity. In the case of S. T. Sharma V/s. H. A. Singh, 1975 Cr LJ 172, it has been held that under Section 145 of the Code of Criminal Procedure it is the duty of the Magistrate to consider and assess the value of the written statement, affidavits and documents filed by the parties. Anomission from consideration of material documents vitiates the order. When a document is produced in evidence it becomes the duty of Magistrate to consider the document and he should assign reason for either accepting or rejecting it, failure to do so vitiates the order. In the instant case. I have already mentioned above that the documents filed by the petitioner have not been considered, at all, except that they have been enumerated in the order and this vitiate the order in question. 8. In the instant case. I have already mentioned above that the documents filed by the petitioner have not been considered, at all, except that they have been enumerated in the order and this vitiate the order in question. 8. In the resut, in the light of the discussions made above, this revision application is allowed and the order dated 30th June, 1990 is set aside and the case is remitted back to the learned Magistrate to hear afresh both the parties and pass judgment in accordance with law after taking into consideration the oral as well as documentary evidence available on the record.