SHAMSHER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This is an application under section 482, Cr. P.C. moved by one Shamsher Singh praying to quash the order dated 16/8/1981 passed by the Second Additional Sessions Judge, Bijnor in Criminal Revision No. 16 of 1981; Ajaib Singh and others v. Shamsher Singh and others. It has further been prayed that the order dated 31/12/1980 passed by the Sub-Divisional Magistrate, Najibabad in proceedings under section 145, Criminal Procedure Code in Case No. 10 of 1981; Shamsher Singh v. Ajaib Singh be restored.

(2.) The relevant facts of the case are that Shams her Singh moved an application under section 145, Criminal Procedure Code claiming his exclusive possession over Khasra plot No. 27; area 27 bighas 13 biaswas and 6 biswansis situate in village Doodhala Dayalwala, Police Station Shyampur, District Bijnor. He apprehended breach of peace at the hands of opposite parties Ajaib Singh, Tarsem Singh, Surendra Singh and Gajjan Singh who too claimed their possession over the same land. The Sub-Divisional Magistrate passed a preliminary order under section 145 Criminal Procedure Code on 4/12/1979 and ordered the parties to adduce their respective evidence. The Sub-Divisional Magistrate, after considering the evidence of the parties, came to the conclusion that he was unable to satisfy himself as to which of the two parties was in possession over the disputed plot at the time of the passing of the preliminary order or two months prior to it and, therefore, he attached the disputed plot under section 146(1) Criminal Procedure Code until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession there of. He passed this order under section 146(1), Criminal Procedure Code on 31.12.1980. Aggrieved by this order, the opposite-parties went in revision and the Second Additional Sessions Judge, Bijnor by his order dated 16.6.81 set aside the said order of the Sub- Divisional Magistrate and dropped the proceedings because be found that the land in dispute was in joint possession of the parties.

(3.) It has been urged by counsel for the applicant that in view of the clear cut finding of the Sub-Divisional Magistrate that he could not satisfactorily decide as to which party was in possession over the disputed plot on the date of the preliminary order or two months prior to it, the Second Additional Sessions Judge could not set aside this order by substituting his own finding in regard to the possession over the disputed plot. The above being a finding of fact could not be disturbed in revision. It has further been urged by counsel for the applicant that the order of the Magistrate could not lie revised by the Sessions Judge as it was an interlocutory order.