UDAYANATH BARAL Vs. BULA OJHA AND ANR.

JUDGEMENT

(1.) MEMBER -1st party has filed this revision against an order in a proceeding under Section 145, Code of Criminal Procedure. The subject -matter of dispute appertains to plot No. 103 in Khata No. 49. According to the 1st party, one Baidhar Champati and Nabakishore Champati along with one Panu Champati were recorded as Sthitiban tenants in the last record -of -rights and by amicable arrangement Baidhar and Nabakishore were in separate possession of half of the land. Both Baidhar and Nabakishore died issueless. After Baidhar's death, his widow brought the 1st party to her house and since then he has been in possession of the disputed land paying rent regularly. The 2nd party, on the other hand, claims to be in possession all along and denies the let party to have been ever in possession. Besides written statements, five affidavits were filed on behalf of the 1st party and three on behalf of the 2nd party. In addition, 1st party filed documents marked En. 1 to 12 out of which, Exs. 1 to 10 are rent receipts and the 2nd party appears to have filed documents marked Exs. A to E. The learned Magistrate by the impugned order found the 2nd party to have been in possession within two months preceding the date of the preliminary order and declared that they are entitled to be in possession until evicted therefrom by due process of law.

(2.) THE Petitioner assails this order mainly on the ground that the learned Magistrate has not considered the evidence, applied his mind to the material placed before him and has arbitrarily declared the 2nd party to be in possession. This contention is substantially correct.

(3.) HENCE , I allow the revision, set aside the order of the learned Magistrate and direct him to dispose of the matter afresh after due consideration of the affidavits filed by respective parties as when as the documents filed by either side. For the purpose of disposing of the proceeding, he should call upon the parties to file such of the documents which have been taken return of, so that it will be possible for him to consider their effect in reaching his conclusions.