MANGALA MAJHI Vs. SALGE BEWA

JUDGEMENT

(1.) SECOND party members are the petitioners. Mangala Maihi, petitioner No. 1, is the father of petitioners 2 and 3. The husband of opposite party No. 1 Salge Bewa and Mangala are two brothers. Opposite party No. 2 is a transferee from opposite party No. 1 in respect of plot Nos. 590/871 and 590/872. The case of opposite party No. 1 is that her husband was separate from Mansala; the disputed lands were allotted to her husband's share; she has been all through in possession and the petitioners taking law into their own hands have disturbed her possession within two months of the preliminary order passed on 4 -2 -72. She transferred plot Nos. 590/871 and 590/872 to opposite party No. 2 by a registered sale deed dated 1 -7 -71. The case of the second party members is that there was no partition and all through they are in possession. The learned Magistrate declared possession in favour of the opposite parties except in respect of plots 19, 145 and 148/1 and passed an order forbidding the petitioners to disturb their possession of the disputed lands. It is against this order that the criminal revision has been filed.

(2.) NO affidavit has been filed by opposite party No. 1. Six affidavits have been filed by opposite party No. 2 including an affidavit from opposite party No. 1. All these affidavits support the case of the first party members. 13 affidavits have been filed by the petitioners and they support the case of the second party members. If one is to go by affidavits alone, then there is no scope for interference with the order of the learned Magistrate. Affidavits on either side are balanced.

(3.) ON the aforesaid analysis, the order of the learned Magistrate is set aside except in respect of plots Nos. 19, 145 and 148/1. His order in respect of plot No. 587/1 is also set aside as the same does not constitute the subject -matter of dispute and possession of any of the parties cannot be declared in respect of that plot in respect of all other plots, the order of the learned Magistrate is set aside and the criminal revision is allowed. The possession of the second party members in respect of all the disputed lands except plot No. 587/1 which is not the subject -matter of dispute is declared and they are to retain possession until eviction in due course of law. The first party members are forbidden from disturbing their possession until such eviction. Revision allowed.