STATE OF MAHARASHTRA Vs. KALABAI NATHUJI RAJURKAR

JUDGEMENT

(1.) This is a reference by the Additional District Magistrate, Akola, recommending that the order of the Sub -Divisional Magistrate in Section 145, Criminal Procedure Code proceedings is vitiated by non -consideration of the affidavit evidence and that he misdirected himself to come to a conclusion on the basis of evidence not legally tendered.

(2.) THERE was a dispute between the two parties in village Risod, district Akola. The subject -matter of the dispute was pardi land adjoining this village admeasuring 1 acre, 19 gunthas with a well. Irrigation crops were grown on this land. This land is owned by one Vithalrao Deshmukh. It was leased out to one Nathuji who was in possession till August 18, 1967 when he died. He left his wife Kalabai and his son Rambhau as his successors. They were in possession after the death of Nathuji. A quarrel was started by one Sambhaji who is party No. 2 by claiming possession of this pardi land. His claim is that he was in possession from a date prior to 1967 -68 as a lessee of the owner Vithalrao Deshmukh and that his possession has been an exclusive and a peaceful possession.

(3.) THE learned Additional District Magistrate after considering the arguments and the record came to the conclusion that the order passed by the Sub -Divisional Magistrate was vitiated because the learned Magistrate did not consider the affidavit evidence of party No. 1 or the affidavit evidence of their witnesses. The learned Additional District Magistrate was also of the view that some inadmissible evidence, viz. the police statements of party No. 1 were also admitted in evidence. But from the record it appears that that evidence was not admitted in evidence by the Sub -Divisional Magistrate, He has discarded those statements probably because they were not proved properly. The learned Additional District Magistrate was also of the view that the possession even if there was one of Sambhaji was not legal because Nathuji was a protected lessee and Sambhaji could not come into possession without any valid surrender by the protected lessee. Accordingly, therefore, the learned Additional District Magistrate has referred the matter here to quash the order passed by the Sub -Divisional Magistrate, The learned Sub -Divisional Magistrate, of course, is concerned only with the fact of possession.