RAJENDRA SINGH Vs. SUDHIR KUMAR AND OTHERS

JUDGEMENT

(1.) FACTS giving rise to this criminal revision are that Pyare Lal was owner of a house. He died sometimes in 1930 or 1931 leaving his daughter Smt. Hansmukhi. He had a brother Kishan Lal. Opposite Party No. 2 Smt. Shanti Devi is widow of said Kishan Lal. Opp. party No. 1 Sudhir Kumar is daughter's son of said Kishan Lal. In 1987 preliminary order under Sec. 145 (1) Cr. P.C. was issued in respect of the said house and revisionist Rajendra Singh was arrayed in the procee­dings as second party and Smt. Shanti Devi and Sudhir Kumar were arrayed as first party. Both the parties were required to file written statements. Rajendra Singh laid claim to the house through sale-deed executed by Smt. Hansmukhi in his favour and asserted that after the death of Pyare Lal Smt. Hansmukhi became the sole-owner. After sale-deed by Hansmukhi he entered into possession and has been in possession. On the other hand, Smt. Shanti Devi and Sudhir Kumar claimed the house contending that Kishan Lal succeeded Pyare Lal as collateral and now being his descendants they are owners in possession. Both the parties rested their claim to possession, on title. Learned Magistrate was of the opinion that Smt. Hansmukhi was the owner in possession and under the sale-deed Raje­ndra Singh is owner in possession. He did not discuss the evidence relating to poss­ession adduced by the parties for arriving at finding of possession without reference to right to possess that is title.

(2.) BEING aggrieved Sudhir Kumar and Smt. Shanti Devi preferred revision before Sessions Judge. The learned Sessions Judge considered and discussed evidence of poss­ession but he too said the legal position is also that after the death of Pyare Lal the disputed house was inherited by his brothers as the owners and not by his daughter Smt. Hansmukhi Devi and she had got only limited interest in it. He came to the con­clusion that the finding recorded by the Magistrate regarding possession of Rajendra Singh is absolutely illegal and perverse. He set aside the order and finding of the learned Magistrate and held Sudhir Kumar and Smt. Shanti Devi to be in possession over the disputed house on the date of the preliminary order. He further directed that since before the stay order dated last July, 1988 passed by Sessions Judge the Magistrate delivered possession to Rajendra Singh Magistrate should restore possession over the disputed house to Sudhir Kumar and Smt. Shanti Devi. In this revision Rajendra Singh has challenged the findings and order of the Sessions Judge. Section 145 (4) makes it clear that the question of possession on the date of the preliminary order or within two months before that should be decided without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute. This clearly means that under Sec. 145 answer to the question of possession on relevant date should not be rested on title but should be decided on the evidence of possession which may be adduced by the parties. It is evidence that the learned Magistrate gave a finding of possession relying rather solely on title of Smt. Hansmukhi and the title deed executed by her. This was contrary to the provisions of Sec. 145 (4). The learned Sessions Judge should have set aside the findings and order of the learned Magistrate on that ground and should have remanded the case to the Magistrate for recording fresh finding of possession on the evidence of possession adduced by the parties without reference to title. The learned Sessions Judge discussed the evidence. He preferred the evidence of Sudhir Kumar and Shanti Devi but again allowed himself to be confused by referring to matters relating to title. Firstly, powers of revisional court are always limited to matter of law or material irregularity in procedure. A revisional court cannot itself appreciate evidence and record as finding of fact. Sec­ondly, the learned Sessions Judge committed the same mistake which was committed by the Magistrate and allowed himsfelf to be confused by referring to matter of title. I hold that the finding and orders of both the Magistrate and the Sessions Judge are illegal. They have to be set aside and case has to be sent back to the Magi­strate for fresh decision of question of possession and further with specific dire­ction that in deciding the question of poss­ession the Magistrate should not rely upon evidence of title and should decide the question of possession on the basis of evidence of possession adduced by the parties.