INDRA MAHAKUD Vs. MUSAMAT ASMATI AND ORS.

JUDGEMENT

(1.) THE dispute in a proceeding under Section 145, Code of Criminal Procedure which has given rise to this revision relates to 7.06 acres of land. One Khadia had six sons, the third being Baji. Baji 's son is Ugrasen and Ugrasen 's son is Indra, the first party in the proceeding. Khadia 's second son is Satrughna and it is he who was the admitted owner of the disputed property. Satrughna had two wives Ramani and Kautuki. Ramani who predeceased Kautuki had three daughters, Asmati (second Party No. 1) being the youngest. Asmati 's two sisters are dead. It is not disputed that after Satrughna 's death; it is Kautuki who became entitled to his properties. Kautuki bad no issue of her own. The case of the first party is that sometime after Satrughna 's death, Kautuki went and lived with him, and was being looked after by him and that he was also cultivating the disputed lands on her behalf. His further case is that sometime in 1958 Kautiki made an oral gift of the lands to him and ever since then he was in possession of the lands tin they were attached in the proceedings. Asmati denied the aforesaid allegations of the first party. According to her, during the period 1961 to 1966, the disputed lands were being cultivated on bhag, half by Indra, the first party, and the other by one Gokul. It seems, Indra having failed to pay the bhag in 1966, he was evicted from the lands by Kautuki. Kautuki died in - 1968 and Asmati her nearest heir claims to be in possession of the lands since then. This, in short, is the case of the parties.

(2.) THE preliminary order in this case was passed on 5 -7 -1968. Parties filed affidavits in support of their respective case of possession. Five affidavits were filed on behalf of the second party and all expect one were by the members who were arrayed as second parties in this case. Of the four affidavits filed on the first party 's side, one is by the first party himself and the other three by persons who claim to be the adjoining tenants of the disputed lands. Some rent receipts also have been filed in this case. It is not disputed that the disputed lands still stand recorded in the Dame of Kautuki. Necessarily, the rent receipts should also be in her name. But four of the rent receipts filed by the first party are dated 1 -4 -1949, 22 -3 -1959, 31 -3 -1961 and 14 -3 -1963 and they show that rents were paid on behalf of Kautuki by the first party. This dot 's not fit in with the contention advanced on behalf of the second party that Indra paid rent on behalf of Kautuki as he happened to be a bhag tenant of a portion of the disputed lands because according to the second party Indra only held half of the disputed lands on bhag from the year 1961 till the year 1966. The learned Magistrate no doubt referred to the fact that three independent witnesses have filed affidavits on behalf of the first party, but he has nowhere discussed their evidence. His conclusion that the second party was in possession of the lands after the death of Kautuki appears to have been considerably influenced by his finding that Asmati was Kautuki 's heir and as such entitled to possess the lands. That is not the correct approach in deciding a case under Section 145, Code of Criminal Procedure. Although the question of title and the question as to who is entitled to possession may be relevant to determine the point at issue regarding possession, yet the question of possession should be independently judged and shall not follow as a corollary from the findings regarding title and regarding right to possess.