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2003 DIGILAW 424 (JHR)

Bhugol Sardar v. Rajendra Sardar

2003-04-02

AMARESHWAR SAHAY

body2003
Order Heard the learned counsel for the parties. 2. The present application is directed against the order dated 25.7.2001 passed by the Additional Sessions Judge, Pakur in Cr. Revision no. 17/90 by which the learned Revisional Court, set aside the order dated 19.12.1989 passed by the Executive Magistrate, Pakur in T.R. no. 5/1989 in a proceeding under Section 145 Cr.P.C., declaring the possession of the second party i.e. the petitioner in the present application with respect to the lands under the proceeding. 3. It is not necessary to state the respective cases of the parties in detail, suffice is to say that a proceeding under section 145 Cr.P.C. was initiated at the instance of the opposite parties with respect to Jamabandi no. 9 of village Dhawapahari area 34-7-5, Jamabandi no. 3 of village Dungi Barmasia area 13-12-5 and Jamabandi no. 3 of village Dhawa Dangal area 3-6-10. 4. The learned Executive Magistrate by order dated 19.12.1989 after considering the respective cases of the parties and on considering of the oral and documentary evidence adduced on behalf of the parties, declared possession of the second party with respect of the lands under the proceeding. 5. Against the said order of the learned Executive Magistrate, the first party, went in revision by filing criminal revision no. 17/ 90, challenging the order of the Executive Magistrate, declaring possession in favour of the second party. The learned Revisional court, by the impugned order dated 25.7.2001 set aside the order of the Executive Magistrate and held that the declaration of possession by the Executive Magistrate, in favour of the second party, was not legal, and valid, as the dispute related the title over the lands in question and thereby directed the parties to approach the Civil court for declaration of their right, title and possession. 6. From perusal of the impugned order of the learned Revisional court, it appears that the Revisional court has committed error in deciding the revision application as if he was sitting in appeal against the order of Executive Magistrate. The learned Revisional court has gone beyond his jurisdiction in reappreciating the oral and documentary evidence adduced by the parties and in coming to the conclusion that finding of the Executive Magistrate was not correct. 7. The court while exercising revisional jurisdiction shall not and cannot re-appreciate and re-appraise the evidence and finding of fact recorded by the trial court. The learned Revisional court has gone beyond his jurisdiction in reappreciating the oral and documentary evidence adduced by the parties and in coming to the conclusion that finding of the Executive Magistrate was not correct. 7. The court while exercising revisional jurisdiction shall not and cannot re-appreciate and re-appraise the evidence and finding of fact recorded by the trial court. It can only be interfered with if such findings are perverse or based on no evidence or suffered from error of law. In absence of any error of law, findings of the trial court on full consideration of facts cannot be disturbed by the Revisional court. 8. The learned Revisional court had no jurisdiction at all to substitute his own finding on reappreciating the evidence and upsetting the finding of fact arrived at by the trial court. It is a settled law that if after appreciation of the evidence on record, the trial court comes to a finding on question of fact, the Revisional court cannot sit in appeal against the finding of fact arrived at by the trial court. 9. From perusal of the order of the learned Executive Magistrate it appears that he has discussed and considered in detail the respective cases of the parties and has also considered each and every oral and documentary evidence adduced by the parties and then has come to a definite finding on the question of fact and then has declared possession of one party. Therefore, in my view, the learned Revisional court has committed an error of. law in interfering with the finding of fact arrived at by the learned Executive Magistrate after re-appreciating and re-appraising the evidence. 10. In the result this application is allowed, the order of the learned Revisional court dated 25.7.2001 is set aside and the order of the learned Executive Magistrate declaring the possession of the petitioner is affirmed.