SYED HASAN Vs. MUNSIF HAVALI AND ORS.

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution praying for the quashing of a finding recorded by Munsif Havali, Lucknow, opposite party No. 1, in a case referred to him under Sec. 146, Code of Criminal Procedure.

(2.) Each of opposite parties Nos. 3 and 4 applied under Sec. 145, Code of Criminal Procedure in respect of the disputed plots. The Petitioner contested the applications moved under Sec. 145, Code of Criminal Procedure. Opposite parties Nos. 5 to 8 are the sons of the Petitioner. The magistrate seized of the case failed to come to a conclusion on the basis of the evidence on the record as to which of the contesting parties was in possession of the disputed plots on the relevant date. Accordingly, he referred the case to the Civil Court under Sec. 146, Code of Criminal Procedure. It is in these circumstances that opposite party No. 1 came to a finding that opp. party No. 3 was in possession of the disputed plots on the relevant date and none other. Before a final order could be passed in the case under Sec. 145, Code of Criminal Procedure on the basis of the aforesaid finding recorded by opposite party No. 1, the Petitioner has come to this Court challenging the finding recorded by opposite party No. 1, mainly on the ground that it proceeds on the basis of the oral and documentary evidence led by the parties before opposite party No. 1 without taking into consideration the affidavits filed by the parties in respect of their respective cases before the Magistrate. Hence, the prayer is that the finding recorded by opposite party No. 1 be quashed and a direction be given to opposite party No. 1 to decide the question of possession afresh after taking into consideration the entire evidence on record including the affidavits filed by the parties as expressly required by the provisions of Sec. 146(1 -A) of the Code of Criminal Procedure.