NIHAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) On 28th July, 1990 this case was fixed for hearing today with tie agreement of the counsel of the parties for the revisionists, I have gone through the record with the assistance of the learned counsel for the parties. proceed to dispose of the revision on merits. After proceedings under Section 145 (1) and 146 (1) on ground of emergency, Magistrate recorded finding of possession on the date of preliminary order and within two months thereof in favour of the revisionists. Opposite parties preferred revision. The learned re visional court preferred to some evidence relating to will relied upon in the order of the Magistrate. Learned revisional court went through the record and held that the finding of the Magistrate Is contrary to the evidence that is perverse. The learned revisional court held that the opposite parties before it could not prove their possession. But the learned revisional court passed a peculiar order. It set aside the order of the Magistrate and quashed entire proceedings under Section 145and146cr. P. C. Being aggrieved, the party whose posses sion was found by the Magistrate, preferred this revision. In deciding question of possession under Section 145 (4) the Magistrate should record his finding "without reference to the merits on the claims of any of the parties to a right to possess. " This means that in deciding the question of possession under Section 145 (4) the Magistrate should not enter into question of title. However, if the case is such that possession follows title the Magis trate may use the evidence of title for col lateral purpose of possession. The learned revisional court was perfectly justified in saying that the finding of the Magistrate is contrary to evidence that is perverse. But the revisional court himself had no juris diction to say that the party found in posses sion by the Magistrate failed to prove posses sion. The revisional court could have been justified in setting aside the order of the Magistrate but could not be at all justified in quashing the entire proceedings. Revisional court ought to have remanded the case to the Magistrate with direction to record finding of possession under Section 145 (4) in accordance with the observations made by him and then to pass appropriate orders under Section 145 (6 ). In result, this revision succeeds in part. Order of the lower revisional court setting aside the order of the Magistrate is confirmed. Case is remanded to the Magistrate for fresh finding under Section 145 (4) in the light of observations made by the lower revisional court. But the finding of the lower revisional court that the party found in possession by the Magistrate failed to prove his posses sion, shall not be binding upon the Magis trate. After recording proper finding under Section 145 (4) the Magistrate shall pass logical consequential order under Section 145 (6 ). The learned Magistrate shall endeavour to dispose the case within three months of the receipt of order and record from this A-10 Court. He may change the receiver on the application of any of the parties during the pendency before him. Office shall send back the record and copy of this judgment to the Magistrate. Partly Allowed .