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2013 DIGILAW 823 (GAU)

Abdul Haque v. Kutindra Bhoumiz and Ors.

2013-11-21

NISHITENDU CHAUDHARY

body2013
By this application under section 397/401 of the Code of Criminal Procedure, 1973, the first party as petitioner has challenged the judgment and order dated 22.3.2012 passed by the Learned Sessions Judge, Karimganj in Criminal Motion No. 42(4)/2010 whereby the learned Sessions Judge allowed the revision and set aside the order of the learned Executive Magistrate passed in Misc. case No. 610(M)/1999 under section 145, Cr.PC declaring possession of the first party over the proceeding land and thereby vacating the order of attachment. 2. The first party approached the learned Executive Magistrate at Karimganj claiming that the proceeding land was settled with him by Jalalnagar Tea Estate and he had been in possession thereof without any interference by any one until the second party members started to create trouble with a view to disturbing the possession of the first party and consequently apprehension of the breach of peace had arisen in the locality. The learned Executive Magistrate by order dated 29.11.1999 drew up a proceeding under section 145, Cr.PC and issued notice to the second party. Thereupon the second party appeared and submitted written statement claiming that they were actually settled with the proceeding land by the garden authority and that they had been in possession thereof for long period and as such their possession be declared. Both the sides led evidence on the rival contentions. While the first party examined three witnesses including himself, the second party examined two witnesses including himself. The PW-1 (Abdul Haque) stated on oath the facts stated in his written statement and claimed that a proceeding under section 144, Cr.PC was drawn with respect to the same land in his favour by the learned Executive Magistrate after obtaining police report. In course of his cross-examination he admitted that he did not have any document to establish settlement of the land in his favour by the garden authority and that he obtained the land from the manager. He further stated that the land is a ceiling surplus one and in the records of rights the same has been shown as khan land. He also stated that the land is near the house of the second party members and at a distance from his house. PW-2 Abdul Rasid claimed to have seen the first party about 8 years back in cultivating the proceeding land when the second party objected and consequently the same resulted in dispute. He also stated that the land is near the house of the second party members and at a distance from his house. PW-2 Abdul Rasid claimed to have seen the first party about 8 years back in cultivating the proceeding land when the second party objected and consequently the same resulted in dispute. In course of cross-examination he admitted that he lived in the same village where the first party members lived. He could not say as to when had the first party taken settlement of the garden authority but he knew that first party member was not a landless person. He could not say as to when did the second party members try to create trouble. He also could not say as to when did the police visit the spot. Abdul Salam being the PW3 in the case claimed that first party member was in possession of the proceeding land for a period over 25-30 years, that the second party was never in possession but they took away the paddy grown on the proceeding land. In course of cross-examination he admitted that he did neither possess any land near the proceeding land nor did he cultivate land of any person at any point of time. He admitted that second party member is the labourer of Madanpur Tea Estate. He admitted that he has his house only 2 houses next to the house of the first party member whereas the disputed land is near Madanpur Tea Estate and in between there is a village known as Nayagram. He further stated that he was brought by the first party member to depose in his favour. 3. The second party members examined two witnesses. While Dilip Das was examined as DW-1 one Ranvir Chakraborty was examined as DW-2. In course of his deposition, DW-1 stated that the first party member was earlier a surveyor of the Tea Estate but later on he gave up the job and stated working as a scribe in sub-Registrar office. He stated that the proceeding land is about 10/12 cubits away from his house and he had been possessing the same since 1990 by way of cultivation. He stated that the land has been attached in his possession. He stated that the proceeding land is about 10/12 cubits away from his house and he had been possessing the same since 1990 by way of cultivation. He stated that the land has been attached in his possession. He stated that the first party had earlier filed another ease against him with regard to the same land but before the said case was taken to finality, the present case was filed. DW-2 (Ranvir Chakraborty) is an employee of Tea Estate and he testified that the proceeding land was settled with the second party member by the Tea Estate for doing cultivation and he did never see the first party to be in possession of the same. He stated that he had been in the service of the Tea Estate since 1978. On perusal of such documents and deposition of the witnesses the learned Executive Magistrate by order dated 24.2.2009 held that it was not possible to declare possession of either of the parties, that the dispute was civil in nature and that it would be just and proper on the part of the parties to approach competent civil court for getting necessary declaration. 4. The aforesaid order 24.2.2009 passed by the learned Executive Magistrate was challenged by the first party in criminal revision No. 18(1) of 2009 and the learned Sessions Judge by order dated 17.3.2010 allowed the said revision directing the learned Magistrate to decide the possession of the parties on the basis of materials on records. Upon remand, the learned Executive Magistrate considered the materials on records and declared possession of the first party over the proceeding land. In so doing the learned Magistrate held that second party had no right, title and interest to the land in question and that they had attempted to dispossess the first party member. This order virtually declaring the right, title and interest of the first party by the learned Executive Magistrate was challenged by the second party members before the learned Sessions Judge, Karimganj in Criminal Motion No. 42(4) of 2010 and it is in this revision petition, the learned Sessions Judge passed the impugned order declaring the possession of the second party over the land in question. In so doing, the learned Revisional Court made the following observation : "18. In so doing, the learned Revisional Court made the following observation : "18. In view of the above discussion, I am of the clear view that the learned court below in the impugned order failed to appreciate the evidence in its proper perspective and it mainly relied on the documentary evidence and also merely on the face value oral evidence without criminal examination and analysis of the same. Therefore, the impugned order is not tenable in the eye of law and, hence, it is set aside. It is found that the 2nd party revisionist had been in actual physical possession over the DL and their physical possession was being continuously disturbed by the 1st party OP in one way or other. Accordingly possession of the revisionist 2nd party is declared over the DL. Therefore possession of the DL be handed over to the 2nd party revisionist." 5. The learned Sessions Judge has considered the evidence led by both the parties. On perusal of the materials on records, the learned Sessions Judge was satisfied that the first party could not prove their possession over the proceeding land. The learned Sessions Judge observed that the first party having claimed that he had obtained land on settlement from the garden authority, failed to examine a single witness from the garden to support his claim. On the other hand, the second party member examined an employee of the garden as DW2 who deposed that the garden authority settled the land with the second party members. The learned Sessions Judge, therefore, found force in the submission of the second party and declared his possession. 6. I have heard Mr. G. Alam learned counsel for the petitioner and Mr. J. Dus learned counsel for the opposite party Nos. 1, 2 and 5 to 7. I have also perused the lower court records including the depositions of witnesses and the documents relied on by parties. 7. The revision petition is based on the ground that learned Session Judge failed to appreciate the evidence on records, that the possession certificate issued by the garden authority was not considered by the learned Sessions Judge which, if done, the revision petition filed by the second party would have been rejected that there being no defect in the procedure adopted by the learned Executive Magistrate there was no reason for substituting his view over the view of the first court. 8. 8. It is not the case of the revision petitioner that the findings of the learned Sessions Judge were perverse and/or that the same are not based on materials on records. The so called certificate given by the garden authority is available on record and I have perused the same. It is a photocopy of a certificate given by the Manager of the garden who was neither examined nor was the original of the document called/produced. The said paper, therefore, was not duly proved and as such there was no illegality in the judgment of the learned Sessions Judge for non-consideration of such inadmissible piece of document. On the other hand, the learned Sessions Judge thoroughly discussed the evidence led by both the sides and neither the findings on fact arrived at by the learned Sessions Judge can be said to be perverse nor have the same been challenged as so. The reliance placed by the Executive Magistrate on an inadmissible evidence cannot be sustained by any superior court and, hence, the revisional court while adjudicating the correctness of the findings of the first court has rightly rectified the error committed by the first court in this regard. The finding of the first court that first party was in possession of the proceeding land is not sustainable on the basis of the evidence on records and this is why the revisional court has set aside the same being perverse. 9. The revisional court while exercising its power of revision adjudicates legality, propriety and correctness of the finding of the first court and in so doing it has every right to go through the materials available on record to examine as to whether the findings on facts arrived at by the first party (sic.) are based on the materials on records. If the revisional court is not empowered to do so, the professed purpose of satisfying itself as to correctness, legality or propriety of any finding, order or regularity of proceeding would not be possible. The very opening sentence of section 397, Cr.PC starts with 'the High Court or any Sessions Judge may call for and examine the records of any proceeding'. This means that revisional court has the power to examine the records. The very opening sentence of section 397, Cr.PC starts with 'the High Court or any Sessions Judge may call for and examine the records of any proceeding'. This means that revisional court has the power to examine the records. Records means all materials available before the court in a particular proceeding and as such the pleadings of the parties and the documents submitted by them along with deposition, if any would constitute the records of a case. A material can be admitted into records by procedure prescribed by law and the said procedure is laid down in various statutes including the Indian Evidence Act. Merely by placing a paper inside the brief would not be sufficient to make the same a part of the record unless the same is beyond suspicion and admitted in due time in due procedure giving opportunity to the contesting party to examine truthfulness, genuineness and authenticity of the same. This is possible only if a document is tendered in evidence in due course and the opponent is afforded opportunity to challenge the same by way of cross-examination or otherwise. The role of leading documentary evidence is also laid down in the Evidence Act by Chapter V thereof from section 61, 62, 63, 64, 65, 66 and 67. Placing a photocopy of a document without producing the original and without proving content thereof by proper person would not amount to leading of evidence in regard to a document. Here in this case, on the face of denial of claim that the land was never handed over to the first party by the garden authority for possession and cultivation, the burden was on the first party to prove such handing over. The event of handing over by garden authority is possible to be seen and the same can be proved only if some one who has witnessesed such handing over comes to witness box and makes statement on oath. Mere submission of a photocopy of a document to prove such handing over cannot be sufficient proof. On the other hand photocopy of a document cannot be proved without production of the primary evidence for inspection of the court and this is the mandate of section 62 of the Indian Evidence Act. Mere submission of a photocopy of a document to prove such handing over cannot be sufficient proof. On the other hand photocopy of a document cannot be proved without production of the primary evidence for inspection of the court and this is the mandate of section 62 of the Indian Evidence Act. While the first court relied on such a document, the revisional court rightly did not rely on the same and in so doing, the learned revisional court cannot to said to have exceeded jurisdiction. The revisional judgment and order, therefore, cannot be interfered with and consequently the revision must fail. 10. This revision petition is accordingly dismissed. However, no order has to cost.