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2003 DIGILAW 944 (JHR)

Ramdeo Sahu v. Sawana Bhogta @ Pawana Bhogta

2003-08-04

AMARESHWAR SAHAY

body2003
JUDGMENT By Court-The petitioner who was the 1st Party-petitioner in the court below has preferred this Cr. Revision against the final order passed in a proceeding under Section 145, Cr. P.C. by the Executive Magistrate, Ranchi in M.Case No. 891 of 1995 by order dated 08.09.1997, declaring the possession of the members of the Second Party who are Opposite Parties in the present application. 2. A proceeding under Section 144 Cr. P.C. was initiated on the basis of a Police Report which was subsequently converted into a proceeding under Section 145 Cr. P.C. on 13.09.1995 with regard to dispute regarding possession over plot no. 5178 of Khata No. 197, area 2.48 acres out of total area of 4.95 acres situated in village Khukhra within Bero Police Station in the District of Ranchi. there is no dispute between the parties that the land in question originally stood in the name of the recorded tenant Birsa Bhogta. 3. The case of the 1st Party-Petitioner is that Birsa Bhogta surrendered the land in his possession to the landlord by registered deed of surrender dated 11.09.1941. The landlord by a registered deed of settlement, settled the lands so surrendered by Birsa Bhogta to Mahadeo Singh, by a registered deed of surrender dated 19.06.1962. Mahadeo Singh in his turn sold the land so settled with him to Seikh Sahju by the registered deed of sale dated 14.06.1969. The further case of the 1st Party-petitioner is that Jamabandi was created in the name of Seikh Sahju and after his death, his son Seikh Paltu inherited the same and he paid rent also. The 1st Party-petitioner is claiming right, title, interest and possession over the lands under proceeding by virtue of purchase by two registered deed of sales dated 23.02.1981 and 05.01.1982 each sale deed o 1.24 acres from Seikh Paltu. Petitioner says that after his name was mutated, he was regularly paying rent for the same. 4. The case of the 2nd Party-Opposite Parties in brief is that the disputed land which is part and parcel of R.S. Khata No. 157 was recorded in the name of Birsa Bhogta who was the grandfather of the 2nd Party-Opposite Parties. Petitioner says that after his name was mutated, he was regularly paying rent for the same. 4. The case of the 2nd Party-Opposite Parties in brief is that the disputed land which is part and parcel of R.S. Khata No. 157 was recorded in the name of Birsa Bhogta who was the grandfather of the 2nd Party-Opposite Parties. Birsa Bhogta remained in possession so along alive and after his death, the members of the 2nd Party-Opposite Parties came in possession by virtue of being heirs of the recorded tenant and they were continuing in continuous possession of the same. Like previous years, they cultivated the land in question. The 2nd Party-Opposite Parties further stated that the first party-petitioner has no manner of concern over the lands under proceeding. Birsa Bhogta never surrendered the land to the landlord and if there is any document of surrender that is forged and fabricated and the first party is trying to dispossess the members of the 2nd Party-Opposite Parties from the lands under proceeding on the basis of forged and fabricated documents. 5. In order to prove the possession, the first party-petitioner, filed the registered deeds, namely, registered deed of surrender dated 11.09.1941, the registered deed of settlement dated 16.02.1949, the registered deed of sale dated 14.10.1969 by which Mahadeo Singh sold the lands to Seikh Sahju. The registered deeds dated 23.02.1981 and 05.01.1982 i.e. the deeds by which the petitioner, claim right, title, interest and possession over the lands under proceeding. He has also filed the correction slip. Apart from the documents, 3 witnesses were also examined on behalf of the petitioner out of whom first party witness no. 3 is the first party petitioner himself. 6. On the other hand, on behalf of the 2nd party-Opposite Parties altogether 6 witnesses were examined and the following documents were filed and proved (i) R.S. record of rights showing entry in regard to plot in dispute in the name of Birsa Bhogta and also a receipt showing payment of rent by Khata. No. 157 of Birsa Bhogta for the years 1984-85 and 1987-88 of area 6.65-66 acres. 7. No. 157 of Birsa Bhogta for the years 1984-85 and 1987-88 of area 6.65-66 acres. 7. The learned Magistrate on the basis of the statement of the witnesses examined on behalf of the 2nd Party-Opposite Parties declared possession of the 2nd Party-Opposite Parties holding that at least three witnesses who have been examined on behalf of the 2nd Party-Opposite Parties are boundary and adjacent witnesses and they have stated about the actual physical possession of the 2nd Party Opposite Parties. The learned Magistrate mainly relied on the evidence of 2nd .Party witness no. 2 Bandha Ahir, 2nd Party, witness no. 4 Jauru Oraon and 2nd Party witness no. 5 Tekwa Oraon and has came to conclusion that the witnesses examined on behalf of the 2nd Party members have specifically stated that the members of the 2nd Party were in the actual physical possession of the lands under proceeding and finding the evidence of the witnesses of the 2nd Party more reliable, declared possession over the lands under proceeding in favour of the 2nd Party. 8. It is against this order, the 1st Party-petitioners have preferred this Revision application. 9. The learned counsel appearing for the petitioner, Mr. P.K. Prasad, has submitted that the learned Magistrate has committed error of record in holding that the 2nd Party witnesses Jauru Oraon and Tekwa Oraon are the boundary/adjacent witnesses. He has further submitted that the registered deeds which were filed and proved on behalf of the 1st Party carries presumption of correctness and the learned Magistrate committed grave error in rejecting those documents by one stroke of pen without assigning any reason for rejecting those documents. He has further submitted that the learned Magistrate has not discussed the evidence of the witnesses examined on behalf of the parties and has only enumerated them in his order and, therefore, the impugned order is liable to be set aside. 10. In support of his contention he has relied on the decisions reported in 1996 (1) Eastern Criminal Cases 239 (SC), 1984 B.B.C.J. 242B and 1992 (1) RL.J.R. 774. 11. On the other hand Mr. 10. In support of his contention he has relied on the decisions reported in 1996 (1) Eastern Criminal Cases 239 (SC), 1984 B.B.C.J. 242B and 1992 (1) RL.J.R. 774. 11. On the other hand Mr. Pravin Kumar, learned counsel appearing for the 2nd Party-Opposite Parties has submitted that the learned Executive Magistrate has rightly declared possession in favour of the 2nd Party on the basis of the evidence adduced by them which was found to be more reliable, convincing and particularly on the evidence of the boundary/adjacent witnesses, who in clear terms stated that the 2nd Party members were in actual physical possession over the lands in question. He has further submitted that the documents i.e. the record of right standing in the name of Birsa Bhogta and their rent receipts filed by the 2nd Party members showing payment of rent for the year 198485 and 1987-88 clearly go to show that Birsa Bhogta continued to pay rent with respect to the lands till 1998 and, therefore, there was no question of surrender of the lands under proceeding to the landlord in the year 1941 and whatever documents have been produced by the first party petitioners were all paper transactions and they were not in actual physical possession over the same. 12. 1996 (1) Eastern Criminal Cases 239 is not a decision of the Supreme Court as submitted by the learned counsel for the petitioner but it is a decision of a Single Bench of Orissa High Court wherein it has been held that for rejecting the evidence produced by the parties in a proceeding under Section 145 Cr. RC., the court has to assign reasons. There is no dispute in regard to this proposition of law. From the impugned order, it appears that the learned Magistrate has not rejected the documents of the 1st party rather on the basis of the oral evidence of the witnesses examined on behalf of the 2nd Party members who stated that the 2nd Party were in actual physical possession were found more convincing and reliable and then declared their possession. The learned Magistrate has held that the first party may have better title on the basis of the registered documents, but so far as the actual physical possession is concerned, it was with the 2nd Party members on the basis of the evidence of their witnesses. The learned Magistrate has held that the first party may have better title on the basis of the registered documents, but so far as the actual physical possession is concerned, it was with the 2nd Party members on the basis of the evidence of their witnesses. The next decisions cited on behalf of the petitioner i.e. 1984 B.B.C.J. 242 and 1992 (1) PL.J.R. 774 which is a Division Bench decision of Patna High Court, in which it has been held that the affidavits and documents of the parties have to be discussed and not only to be enumerated in the order of the Executive Magistrate. But I find from the impugned order that the learned Magistrate has not only enumerated the documents but has also discussed the same fully. Therefore, this decision is not at all applicable. 13. From careful consideration of the impugned order, as well as the witnesses examined on behalf of the parties in the proceeding under Section 145 Cr. PC., I come to the conclusion that the learned Executive Magistrate has committed no error in declaring possession of the 2nd Party members with regard to the lands under proceeding. 14. In that view of the matter, I find no merit in this application. This application is, accordingly, dismissed.