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2012 DIGILAW 202 (JHR)

Lilu Mahato v. Mahajan Mahato

2012-02-07

H.C.MISHRA

body2012
JUDGMENT By Court.-On 21.11.2011, time was taken on behalf of learned counsel for the petitioners. Yesterday no one had appeared for either side in spite of repeated calls, whereupon the case was fixed for today, but today also nobody appeared for the either side in spite of repeated calls. Accordingly, I have gone though the records. 2. The petitioners have challenged the order dated 14.01.1991 passed by the learned Executive Magistrate, Deoghar in Criminal Case No. 42 of 1986, whereby, in a proceeding under Section 145 of the Cr.P.C., the learned Executive Magistrate, after going through the materials brought on record, had declared the possession of the second party petitioners on Plot No. 663/1275 and had declared the possession of the first party respondents on the remaining Plots bearing numbers, 25, 27, 28, 30, 32, 33, 34, 35, 643, 646, 649, 663, 667 and 456 of Jamabandi No. 25 situated in Village-Kairi, P.S.-Mohanpur within the district of Deoghar. The said order was challenged by the second party petitioners in a criminal revision filed before the learned Sessions Judge, Deoghar. The said revision was decided by the learned 1st Additional Sessions Judge, Deoghar, by order dated 15.03.1997 passed in Cr. Rev. No. 13 of 1991/33 of 1992, whereby, the said revision was dismissed. Both these orders are challenged in the present writ application by the petitioners, who were the second party in the original proceeding. 3. From the averments made in the writ petition, it appears that the impugned orders have been challenged mainly on two grounds, firstly, that the learned Executive Magistrate had taken into consideration certain documents which had not been proved in accordance with law and secondly, whether the first party respondents who claimed the possession, being the mortgagees, can be said to be in actual possession of the land. 4. So far the first point is concerned, the learned Additional Sessions Judge has dealt with the same in detail, from which it appears that the private documents were dilly marked exhibits in the Court below, whereas some certified copies, which were public documents, could not be marked exhibits and still taken into consideration. The Revisional Court below held that these public documents were not required to be proved formally and they could be admitted in evidence without any formal proof thereof. The Revisional Court below held that these public documents were not required to be proved formally and they could be admitted in evidence without any formal proof thereof. One document “Bhugatbandha” was also taken into consideration by the learned Executive Magistrate, without being marked exhibit, but it was found by the Revisional Court below that the said document was otherwise well proved and admitted by both the parties. 5. So far as the second ground taken in the writ application that whether the mortgagee can claim possession over the land in dispute, it is well settled that in a proceeding under Section 145 of the Cr.P.C., the right, title or interest of a party to the dispute is not required to be taken into account. The Executive Magistrate has only to look into the fact as to whether which the parties was, at the date of the order made by him under sub-section (1) of Section 145, Cr.P.C. was in actual possession of the land in dispute. Section 145 (4) of the Cr.P.C. reads as follows :- “The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute.” (Emphasis supplied). 6. From the bare perusal of the Section 145 (4) of the Cr.P.C., it is apparent that Magistrate has to decide the possession of the party without taking into consideration the merits or the claims of any party to a right to possess the subject of the dispute, rather the Magistrate has only to decide as to on the date of the order made by him under Section 145(1), Cr.P.C., which party was actually in the possession over subject matter of the dispute, irrespective of his right or claim to possess the same. 7. 7. On the basis of the materials brought on record the learned Executive Magistrate has come to the finding that first party was in possession over the aforementioned plots in dispute and has accordingly declared the possession of the first party respondents over those plots and also prohibited both the parties from interfering into the possession of each other, unless so directed by the Court of competent jurisdiction. There is no illegality in the impugned orders passed by the Courts below and both the grounds taken in this writ petition are devoid of any merit. 8. Apart from the merits of the case, it appears that the case is very old one and the dispute of possession between the parties continues from the year 1986 itself, which was decided by the learned Executive Magistrate in the year 1991 and confirmed by the learned Additional Sessions Judge in revision in the year 1997 itself. Thereafter, there was ample time to the aggrieved party to get their right, title and interest decided by the Court of competent jurisdiction. 9. This writ application is accordingly, dismissed, being devoid of any merit. Application dismissed.