USHA MEHRA ( 1 ) PETITIONERS are aggrieved by the findings rendered vide the impugned order by the Civil Judge, Delhi. She passed the decree of possession of the land in dispute in favour of the respondents. She not only held that respondents were in possession two months prior to dispute but also directed that possession of the disputed plot be handed over to party No. 1. It is against this order that this petition has been filed challenging the impugned order primarily on the grounds that under Section 145 (1) Cr. P. C. , as it stood prior to the amendment, the Civil Judge was only to submit its report after holding enquiry. The Civil Court had no power to pass a decree of possession. Hence, the impugned order is bad as the Civil Court has passed the decree of possession. Even otherwise by the impugned order the Civil Court has ignored the evidence of material witnesses. She attached no relevance to revenue record rather discarded the same without assigning any reason and finally the Court though admitted that there was no certainty as to where the "kutia" was located because that plot could not be ascertained even after recording the evidence, thus her findings were based on conjucture and surmises. ( 2 ) IN order to appreciate these contentions raised by the petitioners, the brief facts of the case are that Baba Budh Nath (hereinafter called Babaji) was having his "kutia" (Hutment) on a plot of land. Babaji died. After his death both the parties, namely, party No. 1 consisting of Sh. Girdhari Singh and Sh. Khem Raj and party No. 2 consisting of Sh. Kanshi Ram and Sh. Prem Raj and thereafter legal heirs of party No. 2 claimed that they were in actual possession of the "kutia" and the land underneath after the death of the Babaji. According to them the "kutia" was built on their land. Since there was dispute which caused breach of peace hence the S. H. O. , Police Station Roshnara filed a Calandera. On Calandera being submitted the SDM took cognizance under Section 145, Cr. P. C. It was necessary for him to determine the fact of the possession of either party over the disputed land. parties produced their respective evidence by way of documents and affidavits before him. On Calandera being submitted the SDM took cognizance under Section 145, Cr. P. C. It was necessary for him to determine the fact of the possession of either party over the disputed land. parties produced their respective evidence by way of documents and affidavits before him. But the SDM on the basis of that evidence could not come to a definite finding as to which of the parties was in actual physical possession of the disputed land as on 17th December, 1970. He, therefore, referred the matter to the Civil Court under Section 146 (1) Cr. P. C. (pre amended ). ( 3 ) BEFORE the Civil Judge, parties No. I and party No. 2 examined their respective witnesses. Party No. l examined as many as five witnesses namely S/sh. Gokal Singh (P1w1), Karan Chand (P1w2), Goverdhan (Plw3), S. K. Dabas (P1w4), Advocate and Girdhari Lal (P1w5 ). Party No. 2 examined as many as 8 witnesses namely S/sh. Prem Raj (P2w1), Mahinder Pratap (P2w2), Halka Patwari (P2w3), Bhagwan Dass (P2w4), Anand Singh (P2w5), Record Keeper Faquir Chand (P2w6), Dev Raj Kapoor (P2w7), A. A. Khan (P2w8), Devender Prakash (P2w9), Patwari Halka. ( 4 ) PARTY No. 1 claimed that they were owner of land comprising Khasra No. 745/581 which had been demarcated into plots and given Municipal No. 91-C, 91-D, 91-E etc. It was their case before the Trial Court that in the reference itself the disputed plot has been given as plot No. 91-C. Therefore, it is apparent that "kutia" was built on plot No. 91-C, which belonged to them. As party No. 1 was having exclusive title over the land bearing Khasra No. 745/581 out of which small plots bearing 91- C was carved out hence the land underneath the "kutia" built on plot No. 91 -C belong to party No. 1. It was further contended that the predecessor-in-interest of party No. 1 had handed over this land for construction of kutia" to Babaji. As Babaji was seriously ill before his death, he in the presence of respectable people announced that "kutia" belong to party No. l and handed over the keys of "kutia" to party No. 1. After the death of Babaji since he died without any heir, the land automatically vest to party No. 1. Land was never transferred in the name of Babaji. It continued to vest with the members of paty No. 1. After the death of Babaji since he died without any heir, the land automatically vest to party No. 1. Land was never transferred in the name of Babaji. It continued to vest with the members of paty No. 1. ( 5 ) SHRI Gokul Singh, P1w1 tried to prove that Babaji handed over the key in his presence to party No. 1 and that when Babaji fell sick he was looked after by party No. 1. That the "kutia" was built on Khasra No. 745/781 plot bearing municipal No. 91-C. According to him the land underneath the "kutia" was about 50 sq. yds. After the death of Shri Tek Ram, the plot fell to the share of Shri Girdhari Lal. Shri Girdhari Lal constructed building on the same. He denied that jhuggi was constructed on Khasra No. 276. Shri Karam Chand being Naib Tehsildar appearing as P1w2 was required to prove his original report but he could only prove copy of the report exhibit DW5/1 dated 10th November, 1963 and copy of the plan exhibits DW5/2 and DW5/3. He could not produce the original record nor filed the same on record. Therefore, his testimony as such cannot be relied. Reverting to the testimony of P1w3 Shri Goverdhan, S/o Shri Tek Ram, he only proved that the expenses on the illness and cremation of Babaji was bom by party No. 1. He, however, stated that it was after the Babaji s death that key of the "kutia" was handed over to the party No. 1. When subjected to cross examination he could not tell the Khasra number where the kutia was located. He, however, admitted that the "kutia" was constructed on an area of 100/125 sq. yds. He did not produce any books of accounts to prove the expenses incurred nor could say to whom the keys of the kutia were handed over. Rather there is an admission on his part that Shri Prem Raj s father gave the land measuring 100 sq. yds. to Babaji. but tried to explain it away that the said gift of land was without possession. It was only the registry done. The actual possession was not handed over by Shri Bhim Singh, father of Shri Prem Raj. So far as the testimony of Shri Dabas is concerned, much importance has been attached by the Trial Court on his testimony. but tried to explain it away that the said gift of land was without possession. It was only the registry done. The actual possession was not handed over by Shri Bhim Singh, father of Shri Prem Raj. So far as the testimony of Shri Dabas is concerned, much importance has been attached by the Trial Court on his testimony. He is a tenant in house No 95 (E)4b. Jawahar Nagar, Delhi since May. 195 7 According to him the construction of the "kutia" was raised by party No. 1. Shri Tek Ram predecessor-in-interest of the party No. l was his client, therefore, he knew that "kutia" was constructed by Shri Tek Ram on his land. The key was handed over in his presence by the Babaji to party No. 1 To the same effect is the testimony of Shri Girdhari Lal. P1w5 who testified that "kutia" was constructed on his plot. He got the sanction of the plan for raising construction on this plot No. 91-C consisting of 190 sq. yds. ( 6 ) RELYING on the testimonies of P1 W5 and in particular of P1 W4 Shri Dabas to whom the Trial Court considered to be an independent witness, she concluded that possession of "kutia" was with party No. l after the death of Babaji. That the "kutia" was situated on plot No 91-C because Mr. Dabas said so. I am afraid the conclusions arrived at by Trial Court are completely against the facts on record. Shri Goverdhan, P1w5 in no certain word admitted that Shri Prem Raj gave 100 sq. yds land to Babaji. His explanation that the physical possession was not handed over is belied from the documentary evidence produced by party No. 2. Party No. 2 has placed on record the Gift Deed duly registered indicating that out of Khasra No. 276 land measuring 100 sq. yds. was given to Babaji by Shri Bhim Singh predecessor-in-interest of party No. 2. Shri Dabas s testimony that construction was raised by party No. 1 is a mere presumption because "kutia" was in existence when he took the premises on rent in 1957. "kutia" was not constructed in his presence nor land was given to Babaji by party No. 1 in his presence then how he could say that construction was raised by party No. 1. This part of his statement is based on hearsay. "kutia" was not constructed in his presence nor land was given to Babaji by party No. 1 in his presence then how he could say that construction was raised by party No. 1. This part of his statement is based on hearsay. Such an evidence based on hearsay is not admissible in law nor any cridence can be attached to it. Moreover, he could not deny that municipal number of the "kutia" is 5 3 3 9 (A) New Chandrawal. He did not deny the suggestion that "kutia" could be situated on Khasra No. 276. This shows he is not certain on facts. Hence, reliance by the Trial Court on the testimony of Mr. Dabas, P1w4 was mis-placed. On the contrary, party No. 2 has placed on record the Gift Deed exhibit P2w6/1. This clearly indicates that out of devotion and love for Babaji, the donor Bhim Singh gifted the land measuring 100 sq. yds. out of Khasra No. 276. Supporting the Gift Deed are other documents namely revenue record which has been brushed aside by the Trial Court without any justification. In fact observation of the Trial Court that Sh. Faquir Chand P2w6 stated that -"kutia" was constructed by the predecessor-in-interest of party No. 2 is contrary to the writing in the Gift Deed Ex. P2w6/1 and, therefore, no importance could be attached to the Gift Deed exhibit P2w6/1. This approach by the Trial Court, to my mind, is not only erroneous but against the facts which have come on record. In the Gift Deed Ex. P2w6/1 Bhim Singh mentioned that he was gifting residential piece of land measuring 100 sq. yds. namely 2 biswas out of Khasra No. 276 with the following bounderies:- 1) East: Other land of Bhim Singh donor 2) West : Land of Chaudhry Tek Ram 3) South : Public Road and passage to the aforesaid land 4) North: Other land of Bhim Singh, donor. ( 7 ) FURTHER wrote that he donated this land to Baba Budh Nath, Chela Baba Ram Chander Nath, Nange Yogi, r/o New Chandrawal, Subzi Mandi, Delhi, the donee, due to affection and spiritual attachment. ( 7 ) FURTHER wrote that he donated this land to Baba Budh Nath, Chela Baba Ram Chander Nath, Nange Yogi, r/o New Chandrawal, Subzi Mandi, Delhi, the donee, due to affection and spiritual attachment. He then enumerated in the Gift Deed that the aforesaid land was under the possession of the donee Baba Budh Nath since long and that donee had raised temporary structure with the help of clay tiles (Khaprel) and thatched roof and a handpump for water had been installed therein. After saying so he mentioned that in order to make Babaji as permanent owner of the aforesaid land which was under the possession of Babaji he made this gift deed. This writing clearly shows that Babaji s kutia" was built on the land of Shri Bhim Singh, predecessor-in-interest of party No. 2 and not on plot No. 91-C. ( 8 ) THE Trial Court conveniently ignored these writings and relied on the oral testimony of one Mr. Dabas. Therefore, the testimony of Mr. Goverdhan P1w3 that Bhim, Singh graced the land measuring 100 sq. yds. lend support to the version of party No. 2. His explanation at physical possession of land was not handed over stood falcified from this document Ex. P2 W6/1 To my mind the gift deed Ex. P2w6/l is a very material document in this case an could not have been ignored. The testimony of Mr. Gokul P1w1 cannot be relied upon, because according to the land underneath "kutia" was only 50 sq. yds. and that construction on the same was raised by Girdhari Lal, which fact is against the record. The Gift Deed which is a document of more than 30 years old and which under law is presumed to be correct clearly indicates that "kutia" was in existence even in 1946 when deed as executed, therefore, there Was no question of any raising "kutia" on the same. Bhim Singh in order to regularise the possession of the Babaji on his land executed the Gift Deed. Hence, oral testimony of the witnesses appearing for party No. 1 in this regard has to be discarded and discredited. Perusal of revenue record exhibit P2w3/1 to P2w3/6 read with exhibit P2w6/1 shows that Babaji was occupying land of Khasra No. 276 and had raised temporary structure on the same. Hence, oral testimony of the witnesses appearing for party No. 1 in this regard has to be discarded and discredited. Perusal of revenue record exhibit P2w3/1 to P2w3/6 read with exhibit P2w6/1 shows that Babaji was occupying land of Khasra No. 276 and had raised temporary structure on the same. Any amount of oral testimony cannot change these writings of Exhibit P2w3/1 to P2w3/6 and exhibit P2w6/1. ( 9 ) PREM Raj P2w1 testified that the property bearing municipal Number 5339-A New Chandrawal, is a part of Khasra No. 276. The fact that property bearing municipal No. 5339-A belongs to party No. 2 has not been denied by any one. P2w5 Anand Singh, Record Clerk of the MCD who appeared twice once as P2w5 and secondly as P2w7 produced municipal record pertaining to the year 1969-70 upto 1990-91 regarding property No. 5339-A. According to the municipal record this property bearing municipal No. 5339-A was assessed in the name of Baba Budh Nath. It is not disputed that property bearing municipal No. 5339-A is part of Khasra No. 276. Thus the municipal record also corroborates the stand of party No. 2 that the "kutia" of Baba Budh Nath was situated on Khasra No. 276 belonging to party No. 2. Therfore, the property in dispute could not have been said to be on plot No. 91-C. ( 10 ) THE saying that the man may tell lie but not the documents aptly apply to the facts of this Case. The Trial Court not only ignroed the revenue record but also the gift deed executed by late Bhim Singh, thereby gifting the land to Baba Budh Nath. Besides ignoring this Gift Deed the Trial Court has also not made any mention regarding the municipal record regarding property tax assessment of this property bearing No. 5339-A in the name of Baba Budh Nath. By relying on oral testimonies of party No 1 the Trial Court fell in error. She ignored the overwhelming documentary evidence which hadi- come on record. For these reasons the judgement of the Trial Court regarding the identification of the land on which "kutia" of Babaji was located cannot be sustained. By relying on oral testimonies of party No 1 the Trial Court fell in error. She ignored the overwhelming documentary evidence which hadi- come on record. For these reasons the judgement of the Trial Court regarding the identification of the land on which "kutia" of Babaji was located cannot be sustained. ( 11 ) AS regards the handing over of the key it has been admitted by the witness of party No 1 that the key was handed over after the death of Baba Budh Nath to party No. l. whereas party No. 2 "s witness stated key was with them and handed over to police by them. Admittedly, key was with the police. Who handed over to police either party No. 1 or party No 2. There is no trust worthy evidence. The Trial Court ought to have called for the police to ascertain who handed over the key But the Court below conveniently ignored to do so rather it satisfied itself by saying that the possession was that of party No 1. which conclusion is belied from the documentary evidence placed on record. On this point the case has to be remanded to the Trial Court to give clear finding as to with whom the key was when dispute arose. ( 12 ) NOW we are left as to what is the import of gift deed? Whether it debars the legal heirs of Bhim Singh to receive back the possession or not? This required interpretation of the gift deed Prima facie the observation of the Trial Court appears to be right that pursuance of gift deed exhibit P2w6/ 1 party No. 2 had forfeited its right to claim possession of this land after the death of Babaji. At the same time it is clear from the evidence that "kutia" was not built on the land of party No. 1 nor on plot No. 91 -C. Therefore, it cannot be said that the land underneath the "kutia" belonged to or was under the control of party No. 1. Therefore, the question revolves around the fact who was having the key of the "kutia and in what capacity that key came to his possession. That would determine the possession of the land on the date referred to in the reference order. On this there is no finding. Hence. case has to be remanded back. Therefore, the question revolves around the fact who was having the key of the "kutia and in what capacity that key came to his possession. That would determine the possession of the land on the date referred to in the reference order. On this there is no finding. Hence. case has to be remanded back. It may however, be mentioned that the Trial Court went wrong in passing the decree for possession. This is contrary to the provisions of sub-section (1) of Section 146. Cr. P C (unamended) which is reproduced as under:- "146. Power to attach subject of dispute:- (1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself so as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute" ( 13 ) THE Trial Court was to given her finding with regard to the rights of the parties as it stood when dispute arose and who would be entitled to possession. Trial Court instead passed a decree of possession which was beyond the scope of reference. ( 14 ) FOR the reasons stated above the impugned order is set aside Case as discussed above is remanded to the Trial Court to give its finding as to which party had the key of the "kutia " after the death of Babaji and How that party came to possess the same.