STATE Vs. SWAMI PRASAD

JUDGEMENT

(1.) THE Sub Divisional Magistrate, Chhatarpur, passed an order under Section 145 of the Code of Criminal Procedure directing that the members (Nos. 1 to 11) of party No. 1 were entitled to possession of the lands claimed by them and forbidding disturbance to their possession until evicted there from in due course of law. The members of party No. 2, who are 22 in number, challenged this order before the Sessions Judge, Chhatarpur. The learned Sessions Judge disagreeing with the finding of the learned Magistrate has referred this case with a recommendation that the order passed by the Magistrate be set aside and party No. 2 be restored to possession or possession may not be delivered to either party and the Magistrate be asked to follow the procedure prescribed by Section 145 of the Code of Criminal Procedure.

(2.) THE main grounds on which the learned Sessions Judge wants, this Court to set as de the order, dated 4 -11 -1961, are that the admissions of some members of party No. 1 to the effect that they had given up their possession and members of party No. 2 were put in possession have been ignored; that the entries in khasra showing possession of party No 2 have not been given due weight and that the affidavits filed on behalf of party No. 1 could not be relied upon by the Magistrate as they were only cyclostyled copies of one another.

(3.) ON the request of party No. 2, I have examined the entire evidence on record carefully. A perusal of the order of the learned Magistrate shows that he has attached weight to the entry in the Settlement Record. It has not been disputed before me that in the settlement which took place in the year 1939, the land in question was shown to be in possession of the members of party No. 1 in their right of being the sub -tenants. In the Panchsala Khasra, which is on record, for the years 1956 -57 and 1957 -58, there exist entries showing possession of the members of party No. 1. In the years 1958 -59 and 1959 -60, these entries have been substituted by other entries showing possession of party No. 2. In the year 1960 -61, the lands have been shown as Khali and possession of none of the parties has been entered. The learned Magistrate attached weight to the affidavits which were filed on behalf of party No. 1 and which precisely showed the particular Khasra number in possession of each one of the eleven members of that party who contested the matter. The learned Magistrate came to the conclusion that the affidavits filed on behalf of party No. 2 were vague inasmuch as they merely generally stated the possession jointly of the members of party No. 2 over the fields in dispute and from a long time.