BUDHU AHIR Vs. ISHWAR CHAND PANDEY

JUDGEMENT

(1.) THIS revision arises out of the order dated 20th February. 1970. passed by Shri R. S. Mishra S. D. M. Ballia in proceedings under Section 145 Criminal Procedure Code in the Criminal Case No. 1 of 1967 Ishwar Chand Pande and others v. Budhhoo and other P. S. Kotwali district Ballia. The magistrate declared the first party i. e. Ishwar Chand Pandp and others to be in possession of the disputed property and restrained Budhhoo and others from interfering with the possession of Ishwar Chand Pande and others till they were evicted in due course of law. The magistrate has further directed that the property in question which was under attachment be delivered to Ishwar Chand Pande and others.

(2.) BRIEFLY stated the facts of the case are that on 30th January. 1965 police report was made from P. S. Kotwali statins that there was apprehension of breach of peace between Ishwar Chand and others on the one hand and Budhhoo and others on the other regarding the land of village Shahpur Dighwara lying within the jurisdiction of P. S. Kotwali Ballla. A preliminary order was passed on 29-1-1967 by the magistrate and both the parties were called upon to file their written statements, affidavits and documents in support of their respective claims. After perusal of the written statements and the affidavits and documents on 28th of February. 1967 the then Sub-Divisional Magistrate declared Buddhoo and others to be in possession of the plots and ordered delivery of possession to them and Ishwar Chand and others were restrained from interfering with the posses sion of Budhhoo and others till thev were evicted in due course of law. Ishwar Chand and others were aggrieved by that order and filed revision before the ADM (J ). Ballia. who held that the proceedings were void ab initio and recommended to this Court for setting aside the order dated 28-2-1967 passed by the then S. D. M. This Court accepted the reference and returned back the record with the observation that the question of jurisdiction should be decided first and if it is found that village Shahpur Dighwara lies in the district of Ballia. the magistrate should further decide the case under Section 145 Cr. P. C. and decide the proceedings according to law. After the case was received before the magistrate 56 persons other than those who were parties along with Budhoo made an application to be impleaded as parties in the case and thev are also parties in the case. They have filed written statements and their affidavits. The magistrate by the order under revision has held that village Shahpur Dighwara lies in the district of Ballia. He has also held that Ishwar Chand Pandev and others were in actual possession of the disputed land on the relevant date and has restrained Budhoo and others from interfering with his possession till they be evicted in due course of law and has directed that the property attached be delivered to Ishwar Chand Pande and others. Budhoo and others filed revision before the Sessions Judge and the Additional Sessions Judge. Ballia by order dated 6th of May 1970 rejected the revision application and upheld the order passed by the magistrate. Against this order Budhoo and others have preferred this revision.

(3.) IT was contended before me by the learned Counsel for the applicant that the magistrate should have decided the question of jurisdiction first whether the disputed land lies within the district of Ballia or not and thereafter he should have decided the question of possession. According to the learned Counsel the magistrate has not followed the directions of this court in deciding the case after re mand I have gone through the order passed by this Court and in my opinion the order remanding the case to the magistrate does not direct that the case be decided in two parts. In my opinion the magistrate has been given direction to decide the Question of iurisdiction and also to decide the auestion of possession provided he comes to the conclusion that the land lies in the district of Ballia. It was also contended in this connection that the applicant had no opportunity to adduce further evidence in sunport of his contention. I have sone through the affidavits filed on behalf of the applicants after the case was remanded and on the perusal of those affidavits it appars that the affidavits not only relate to the point of territorial iurisdiction but it also covers up the point of possession and in my opinion no preiudice has been caused nor the magistrate can be said to have violated in any manner the direction given by this Court. The point therefore, has no force.