SHAMRAO HARI GHORPADE Vs. SHAMRAO GUNDA BHATMARE

JUDGEMENT

(1.) The petitioner party No. 1 Shamrao Had Ghorpade has filed this Revision Application challenging the order passed by the learned Sessions Judge, Sangali setting aside the order passed by the Executive Magistrate, Tasgaon in favour of party No. 1 and deelaring that Party No. 2 was in possession of the disputed land was entitled to retain its possession until ousted by due course of law.

(2.) The facts, in brief, are as under :- One Smt. Dhondubai Murli of Tasgaon is admittedly an owner of the land in dispute. It is the case of the Petitioner party No. 1 that Dhondabai had leased this land to him on 10-6-63 for the period of six years. The rent was Rs. 1200/- per year and Dhondubai passed a rent receipt for having accepted the rent for the year 1963 from party No. 1. It is the case of party No. 1 that since then he is all along in possession of the land in dispute. Dhondubai sold this land in dispute to Party No. 2 for a consideration of Rs. 48,000/- on 12th July, 1974. There after, the dispute regarding Possession started between Party No. 1 and Party No. 2, which culminated in the proceeding uuder section 145 of the Criminal Procedure Code, before the Executive Magistrate, Tasgaon. A preliminary order was passtd by the learned Executive Magistrate on 22nd July, 1974. Thereafter, it appears that both the parties produced documents and led affidavits. The learned Executive Magistrate perused those documents and came to the conclusion that Party No.l was in possession of the disputed land Accordingly, he passed the order declaring party No. 1 to be in possession

(3.) Aggrieved by that ordet, Party No. 2 preferred a Revision Application in the Court of Sessions Judge, Sangli. The learned Session Judge, after hearing, came to the conclusion that the learned Executive Magistrate had not followed any norms of procedure while coming to the conclusion that party No. 1 was in possession. He held that the documents relied upon by the Executive Magistrate were not even proved but they were taken into consideration.Even if they were taken into consideration, It appears that the learned Executive Magistrate had not applied his judicial mind to the assertions made in the affidavit of the witnesses of party iNo. 2, His judgment reveals that he has considered one side The learned Sessions Judge therefore, rightly came to the conclusion that the order should be set aside He then considered the evidence and found that there was abundant documentary evidence to show that prior to the sale Dhondubai was in possession of the land in dispute. Entries in the record of rights in respect of the disputed land showed possession of Dhondubai. The document of sale deed was delivered to party No. 2 Even if the documents produced by party No. 1 are taken into consideration, they are not helpfull to party No. 1 to establish his possession after 1969. He held that party No. 2 on the basis of actual possession obtained a loan from the Bank and these circumstances led him to hold that party No. 2 was in possession. He further held that party No. 1 had filed a tenancy case under section 70 B of the Bombay Tenancy and Agricltural Lands Act, against Dhondubai and party No. 2 for declaration that he was the tenant in the land in dispute and his application was dismissed by the Tahsildar holding that he was not the tenant. He, therefore, passed the impugned order.