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Rajasthan High Court · body

2005 DIGILAW 2915 (RAJ)

Suraj Kanwar v. Uchhab Devi

2005-11-09

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This Criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 10.02.2005 passed by Additional Sessions Judge No. 2, Bikaner (for short the revisional Court hereinafter) in Criminal Revision No. 133/2003 whereby the revision petition filed by the non-petitioners was partly allowed and the order passed by Sub-Divisional Magistrate (North), Bikaner (for short the Executive Magistrate hereinafter) dated 010.2002 was set aside. Aggrieved by the order passed by revisional Court, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and Counsel appearing for the non-petitioners. I have carefully gone through the order passed by revisional Court as well as by the Executive Magistrate. 3. The facts and circumstances giving rise to the instant revision petition are that on an application filed by the petitioner under Section 145 of the Code against the non-petitioners, a case was registered before the Executive Magistrate being case No. 5/1995. During the pendency of the case, a receiver was appointed with regard to the disputed property. However, the parties led their evidence in order to show possession over the disputed property. The petitioner herself appeared as witness and produced Dayaldan in support of her case. She has placed on record the Will executed by deceased Bhanwardan, who was said to be original owner of the disputed property. The Will is said to be executed by Bhanwardan in favour of the petitioner. From the averments of Will and statement of the petitioner as also from the statement of Dayaldan, it is clear that during the life time of deceased Bhanwardan, the petitioner was residing alongwith her husband with deceased Bhanwardan in the disputed property. It has also come in evidence that it was the petitioner, who used to render services to deceased Bhanwardan which is evident from the averments made in the Will. The petitioner has also placed on record Patta in respect of the disputed property which is in the name of deceased Bhanwardan. Thus, deceased Bhanwardan had a disposal right over the disputed property and in exercise of his right to property, the said property was given to the petitioner by way of a Will. The petitioner has also placed on record Patta in respect of the disputed property which is in the name of deceased Bhanwardan. Thus, deceased Bhanwardan had a disposal right over the disputed property and in exercise of his right to property, the said property was given to the petitioner by way of a Will. Some record relating to the bank account of State Bank of Bikaner and Jaipur Form No. DA-1 of the deceased Bhanwardan, who also produced, wherein vide Ex. D-2 the nominee of the deceased Bhanwardan was shown to be the husband of the petitioner. From the evidence produced by the non-petitioner and even from the admitted statement of Ramchandradan non-petitioner, there was earlier quarrel between the parties with regard to the disputed property. From the evidence, it was established that disputed property was put to lock by the petitioner, however, subsequently, within two months from the date of occurrence, the possession of the disputed property was forcibly taken over by the non-petitioners. Therefore, the Executive Magistrate on proper and sound appreciated of the evidence came to the conclusion that two months prior to the initiation of the proceeding, the petitioner was in possession of the disputed property and therefore, the petitioner was held to be in possession leaving the matter to be decided by the civil Court with regard to the title to the property. The Executive Magistrate in clear terms held the petitioner in possession two months prior to the date of occurrence and directed the possession to be given to the petitioner after declaring her to be in possession. The order passed by the Executive Magistrate came to be challenged by the non-petitioners by way of revision before revisional Court. The revisional Court without discussing the evidence produced by the parties and without assigning any reason to take the different view than the one taken by the Executive Magistrate declaring the petitioner in possession of the disputed property two months prior to the occurrence, came to the conclusion that the petitioner failed to prove the physical possession over the disputed property and set aside the order passed by the Executive Magistrate. In my view, the order passed by the Executive Magistrate is based on sound and proper appreciation of the evidence produced by the parties on record. In my view, the order passed by the Executive Magistrate is based on sound and proper appreciation of the evidence produced by the parties on record. It is settled law that when a revisional Court sets aside the order of a Court below then the revisional Court is required to assign the reasons for not agreeing with the finding of the Court below as also to discuss the evidence on record for arriving at its own conclusion. Whereas, in the instant case, the revisional Court failed to assign any reason as to why the revisional Court did not agree with the conclusion arrived at by the Executive Magistrate. 4. I am fortified with the view taken by Honble Supreme Court in the case of Deb Narayan Halder vs. Anushree Halder reported in 2003 CriLJ 4470 (SC), wherein Honble Supreme Court held as under:- “It is well settled that the Appellate or Revisional Court while setting aside the findings recorded by the Court below must notice those findings, and if the Appellate or Revisional Court comes to the conclusion that the findings recorded by the trial Court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the trial Court are sought to be set aside by an Appellate or Revisional Court. One cannot take exception to a Judgment merely on the ground of its brevity, but if the Judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the trial Court, the party aggrieved is entitled to ask for setting aside of such a Judgment .” 5. In this view of the matter, the order impugned passed by the revisional Court is not sustainable and deserves to be set aside. 6. Consequently, the revision petition is allowed. The order passed by the revisional Court dated 10.02.2005 is set aside and that of the order passed by the Executive Magistrate dated 010.2002 is restored. The stay application stands disposed of .