JAI SHANKER LAL Vs. KRIPA SHANKER LAL

JUDGEMENT

(1.) THIS is an application in revision by Jai Shanker Lal against the judgment and order dated 25-5-1981 of Sri R. N. Rai, I Additional Sessions Judge, Ghazipur, in Criminal Revision No. 4 of 1981 by means of which he allowed the revision and set aside the order of the learned Magistrate by means of which the learned Magistrate had directed that possession be given to the applicant over the land involved in proceedings under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code).

(2.) THIS case under Section 145 of the Code initiated on an application by opposite-party No. 1 was in respect of a piece of land, which had a khandahar on it and was bounded with a boudary-wall. The applicant contended that Bhola was the original owner of this land, but he had been in possession over it for some 24 or 25 years. Since 1970 his name had also been recorded over this land in the records of Nagar Palika of Ghazipur. Bhola's parents had been seriously ill before their death. During that period he met their entire expenses, including the expenses of medical treatment. He had also met the expenses of their cremation ceremony after their death and in this way he had advanced rupees one thousand to Bhola to be able to meet all these expenses. At that time Bhola was only 12 or 13 years of age and since he was left without parents, he started living with the applicant, and when he left Ghazipur, he made the applicant owner of this property and put him in possession. As against this the opposite party No 1 who had initiated these proceedings under Section 145 of the Code contended that Bhola had orally vended this property to him for rupees ninety eight. He had taken possession over this property. Later on to guard against his title getting clouded, Bhola executed a yad-dasht in respect of this property in his favour, in which he said that he had already vended this property to the opposite-party No. 1. These were the respective cases of the parties in the Court of the Magistrate.

(3.) IT was urged by the learned counsel for the applicant that in this case notice was actually sent for publication under Section 145 (3) of the Code, therefore, it would be presumed that publication was actually made and there can be no presumption that publication under Section 145 (3) of the Code was not made. There is nothing on record to indicate that notice under Section 145 (3) of the Code was actually sent for publication or that it was published because there is no report or endorsement of any kind to say that such a notice had been published at or near the place in dispute. If such a notice 1 ad not been published, then the learned Additional Sessions Judge inferred that in case of publication some one residing in this locality might have informed Bhola of the proceedings or might have put in appearance before the Magistrate and informed the Magistrate of the true state of affairs. But because such notice was not published, therefore, great prejudice was caused to the interest of Bhola. Prejudice to the interest of Bhola had, however, to be shown and merely because in the event of the notice being published somebody may have informed Bhola and Bhola may have come and he may have shown that he had been prejudiced would not show that any prejudice was caused to Bhola and the opposite-party, in any case, could not say that any prejudice had been caused to Bhola because the contention of the opposite-party himself was that this property had been vended to him for rupees ninety-eight by Bhola. The irregularity in non- publication of notice under Section 145 (3) of the Code, was, therefore, a mere irregularity, which was cured under section 462 of the Code. The order of the learned Magistrate could also not be interfered with on the ground that it was perverse. In Parry's (Cat) Employees' Union v. M/s. Parry & Co. Ltd., AIR. 1966 Calcutta 31 perversity in judgment was defined and it was laid down that perverse rinding is not only against the weight of evidence, but is altogether against the evidence itself. A wrong finding is not necessarily a perverse finding. A finding cannot be said to be perverse merely because it is possible to take a different view on the evidence. In the present case I have very carefully gone through the judgment of the learned Magistrate and I did not find any perversity in it. He had made a reference to all the evidence examined before him or produced by the parties. He had considered this evidence and then gave his finding that the applicant was in possession. The learned Additional Sessions Judge has, however, said that because the learned Magistrate relied on inadmissible evidence, he ignored the provisions of U. P. Municipalities Act and because there was over-writing in the statement of PW 2 Chandra Bhag Prasad over the figure 14 and 15 which, he did not consider, therefore, the finding recorded by the Magistrate was perverse. I am afraid on none of these grounds the finding of the learned Magistrate can be said to be perverse. IT was not shown what inadmissible evidence was relied on by him. Mutation was made in the name of the applicant, then he submitted a map, which was approved by the Municipal Board, the Municipal Board also sent a notice to the applicant under Sec. 271 of the U. P. Municipalities Act saying that the premises be cleaned and it was not shown how any of the provisions of the U. P. Municipalities Act was violated or ignored. Then in the statement of PW 2 Chandra Bhag Prasad it was said that the opposite party No. 1 was in possession over this property for 14-15 years. Then in the cross examination it was said that Bhola was in possession prior to 10 or 11 years. There was over-writing in the figures 14 and 15. But this over-writing was wholly immaterial because whether the opposite-party No. 1 was in possession for 14 or 15 years or in possession for 10 or 11 years, in either case it was shown that he was in possession since long before the preliminary order and two months prior to it. Therefore, even if this overwriting was not discussed in the judgment by the learned Magistrate, it did not make his judgment, in any way, perverse. Since no other reason has been shown why the finding of the learned Magistrate was perverse therefore, the finding of the learned Additional Sessions Judge that the judgment was perverse has to be set aside. Since there was no perversity in the finding of the Magistrate and it was inferred merely from the overwriting over two figures, which was of no consequence and even if publication had not been made under Section 145 (3) of the Code, it had not been shown that any of the parties or Bhola had been prejudiced. Therefore, on none of these grounds the learned Additional Sessions Judge could interfere with the order of the Magistrate and he was not entitled to reappraise the evidence to find that the opposite-party No. 1 was In possession over this property.