AMAR NATH Vs. BADRI

JUDGEMENT

(1.) THE applicant in the initial proceedings has preferred this petition under Section 482 CrPC. It would appear that both sides were afforded opportunity for evidence and thereafter the Magistrate recorded a finding that the opposite parties are in possession and declared their possession. THE present applicant then preferred a revision. THE revisional court in a detailed judgment upheld the findings of the Magistrate and then dismissed the revision. It is note worthy that both sides had given statements on oath. THE Magistrate believed the evidence led on behalf of the opposite parties and did not accept the evidence led on behalf of the applicant. THE applicant's contention is that where both fides lead evidence that evidence which is supported by documentary evidence is to be believed. Reliance in this connection has been placed upon the case of Bhartiya Vidhyalaya Higher Secondary School v. Ram Kripal, 1984 ALJ 1207 and also upon the case of Rang Bahadur Singh v. Kapil Deo, 1983 AWC 611. As regards the matter of appreciation of evidence on fact, no invariable rule of law can be laid down. THE matter is within the scope and jurisdiction of the courts below and unless there is a perversity and illegality in the approach ordinarily in the exercise of its inherent powers the court would not interfere. THEre may be exceptions which may call for interference but such exceptions are very rare and the settled law is that in the exercise of inherent powers this Court does not function as a court of fact. In fact, if any other view is taken, the general provisions providing remedies as contained in Criminal Procedure Code and Civil Procedure Code for provisions of first appeal and then second appeal on question of facts and provisions of revision and appeals in criminal cases would all be practically defeated. By this I do not mean to say that the powers of the Court are fettered. In rarest of are cases such powers can be exercised. But that is not normal practice. It was so held in two cases, namely, Jai Ram v. Dhani Ram, 1982 ACrR 41 and Mohd. Soofi v. Maqbool Ahmad, 1981

(2.) IT was urged that the Magistrate did not consider two papers, namely papers No. A 3 and A 24. As regards paper A 3, I find that the person purporting to issue the copy had not mentioned his official designation. Section 76 of the Indian Evidence Act makes it incumbent. Of course, for seal there is an exception. If official issuing the copy has got no seal he may not affix it, ohterwise even that will have to be affixed. The revisional court has rightly held that in view of Section 76 of the Indian Evidnce Act paper A-3 is not proved. As regards the other paper A-24 it is urged by the opposite parties that actually that paper was sale deed and not photostat copy of the Consolidation (sic) that is Form No. 45. Leaving the controversy apart even if it is held that actually Annexure 4 was paper A-24 that would not make any difference. The entries would follow the result of mutation and would be made on the basis of the title deed. The Magistrate is primarily concerned with the question of possession. IT was next unged that in mutation compromise was filed in which possession was admitted,. Perhaps this argument is on account of paragraph 14 of the judgment of the revisional court, while para 14 of that judgment does not deal with the compromise in mutation in this case, it deals with the possession in the case that was cited, namely, 1979 AWC 299 and that is why it has been quoted as observations of the then Hon. Satish Chandra, C.J. in inverted commas. As regards the position of the compromise the revisional court has dealt with the matter in paragraph 15 of the judgment and has mentioned that there was no mention in the compromise that the present petitioner has been put into possession over the disputed plot or he remained in possession at the relevant dale. One may file a compromise but the Magistrate is concerned only with the possession on the date of preliminary order or two months prior to it. IT is significant to observe that in the sale deed itself there was no recital that possession has already been delivered. There was a stipulation for delivery of possession which could or could not have been later followed. Before the sale deed the opposite party was admittedly in possession and if at the the of execution of the sale deed the possession was delivered to the other side it should have been expressly mentioned in the sale deed which is not the cast. That being the position the oral evidence became relevant as to whether at all any possession was delivered on the execution of the sale deed and if so when, and when that is the position of the facts of the present case, naturally appreciation of oral evidence is equally vital and the judgment of the two courts below being based on appreciation of evidence and there being a concurrent findings of fact this Court in the exercise of its inherent powers will not interfere when it is not the case that the applicant is without any remedy. He can well have his title established by a suit before a competent court of jurisdiction. I may in the end say that the observation in this judgment will in no way prejudice other competent courts concerning mutation proceedings or any regular suit. The petition is dismissed. Petition dismissed.