TEJ SINGH Vs. GURDIAL KAUR

JUDGEMENT

(1.) This is a petition filed by Tej Singh and Pritpal Singh petitioners against the order of the Additional Sessions Judge, Ludhiana dated 30th November, 1983.

(2.) The Samrala police submitted a calendar under section 145 of the Code of Criminal Procedure in the Court of the Sub Divisional Magistrate, Samrala, alleging therein that there was a likelihood of breach of peace due to a dispute regarding the possession of land between the petitioners and the respondents. The Sub-Divisional Magistrate vide his order dated 30th December, 1981, came to a finding that the petitioners had been dispossessed within two months next before the date on which the report under section 145 of the Code of Criminal Procedure was made by the police. Consequently he ordered restoration of the possession of the petitioners. Aggrieved by the order of the Magistrate, the respondents went in revision before the Sessions Judge. The learned Additional Sessions Judge upset the findings of the learned Magistrate and passed the impugned order. Hence this revision.

(3.) I have gone through both the judgments and the evidence with the help of the learned counsel for the parties. The plea of the respondents before the learned Magistrate was that the original owner of the land, namely, Ajit Singh never sold the land in question to the petitioners. However, this stand of the respondents was falsified by a registered sale deed dated 2nd May, 1978, which was produced by the petitioners. Ajit Singh also appeared as AW 8 and stated that he did sell the land in question to the petitioners, that the land was in his exclusive possession on the basis of a private petition between the shareholders and that the physical possession of the same was delivered to the petitioners. Apart from the sale deed and the statement of Ajit Singh, the learned Magistrate took into consideration the fact that the nishandehi of the land in question was given to the partitioners on 9th May, 1978, and that there also zaid rabi gridawari Exhibit A 3 done in the year 1978 in favour of the petitioners. He also took in consideration the statements of AW 7 and AW 9 regarding the family partition. Another fact which influenced him to come to the above conclusion was that on the co-sharers, namely, Lal Singh had sold specific Khasra number on 26th July, 1974, and that the same had been under mortgage with one Manohar Lal. He also took into consideration one report Exhibit A 6 made by Shri K.C. Kapoor lawyer of the respondents that there was family partition and the land was free from encumbrance. Taking into consideration all this oral and documentary evidence the learned Magistrate came to a finding that the petitioners were in possession and had been wrongly dispossessed within sixty days of the filing of the report under section 145 of the Code of Criminal Procedure. However, the learned Additional Sessions Judge in revision came to a finding that it could not be ascertained from the evidence as to who was in possession of the land in question. He, therefore, ordered that the Tahsildar, Samrala, be appointed as the receiver of the property and that the parties may seek partition through the revenue authorities. The learned Additional Sessions Judge was mainly influenced by the fact that there was no entry in the Jamabandi of 1975-76 regarding family partition. Apart from the fact that in revision it was not open to the learned Additional Sessions Judge to disturb the finding of fact reached by the learned Magistrate on cogent and proper evidence, the fact that there is no authority regarding the family partition in the jamabandi of 1975-76 is of no consequence if the factum of partition otherwise stands proved on the record. It is not uncommon that such entries are not brought up to date in the jamabandi for a number of years. So, in view of this cogent oral and documentary evidence relied upon by the learned Magistrate, the finding of the learned Additional Sessions Judge cannot be sustained. Consequently, I allow this revision and set aside the order or the learned Additional Sessions Judge.