RADHEY SHYAM Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS revision is directed against the judgment of the Sub Divisional Magistrate, Varanasi, dated 11 -1 -1973. It appears that on are -port submitted by the Station Officer, Police Station Cholapur dated 4 -11 -1971, the Sub Divisional Magistrate on being satisfied that there was a dispute between the parties in respect of plot No. 1077/3, situate in village Gosainpur Mohaon, passed a preliminary order directing for the attachment of the said plot. The plot was attached on the same day and the parties were called upon to file their written statements. Both the parties filed their written statements alleging their possession over the disputed plot. As the Sub -Divisional Magistrate was unable to decide the question of possession, he referred the case to the civil Court on June 14, 1972 for a finding as to which of the two parties was in possession on the relevant dates. After having received the reference, the Munsif sent back the same to the Magistrate with the observation that as the village where the plot in dispute was situated had been taken under consolidation, therefore, the question of possession remitted to him could not be decided. After the receipt of the aforesaid order of the civil Court, an application was filed by the applicant before the Sub Divisional Magistrate to the effect that the finding of the civil Court may not be given effect to and the case may be referred to it again for a finding on the controversy in question. The Sub Divisional Magistrate rejected the application filed by the applicant and, thereafter, by the order passed on the same date held that in view of the finding given by the civil Court the proceedings under Section 145 Code of Criminal Procedure were liable to be abated. Aggrieved by the order passed on the application filed by the applicant, the applicant went in revision before the learned Sessions Judge. The revision was dismissed. Hence, this second revision.

(2.) LEARNED Counsel appearing for the opposite parties urged that as the applicant did not prefer or file any revision against the order of the Sub Divisional Magistrate directing that the proceedings under Section 145 Code of Criminal Procedure will stand abated, therefore, the present revision filed against the rejection of the application filed by the applicant for not accepting the recommendation of the Munsif was not maintainable. The submission of the learned Counsel for the opposite parties was that on 11 -2 -1972 two orders were passed by the Sub Divisional Magistrate, Varanasi. One of them was rejecting the application of the applicant refusing to send back the case to the Munsif for deciding the question of possession afresh, and the second was the order directing abatement of the proceedings under Section 145 Code of Criminal Procedure. In the submission of the learned Counsel for the opposite parties, the real order by which the applicant could be aggrieved was the subsequent order. To my mind, it appears that the objection taken by the counsel for the opposite parties is not only a technical one but also has no substance. If the prayer made by the applicant was not correctly rejected by the Sub Divisional Magistrate, then the subsequent order passed by him directing the abatement of the proceedings was also bound to fail. Hence, without going into the merits of the objection, I come straightway to the point involved.

(3.) IN the result, the revision succeeds and is allowed. The judgments of the learned Sessions Judge, Varanasi, dated 31 -7 -1973 and that of the Sub -Divisional Magistrate (North), Varanasi, dated 11 -1 -1973 directing the abatement of the proceedings under Section 145 Code of Criminal Procedure are set aside. The Sub Divisional Magistrate may now proceed to decide the case afresh and may again send the issue relating to the question of possession to the civil Court. The stay order is discharged.