SUSHIL KUMAR BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal Procedure has been preferred challenging the revisional order passed by the 2nd Additional Sessions Judge, Katihar in Cr. Revision No. 40/93 whereby and where under the order dated 15.3.1993 passed by the Executive Magistrate, Katihar in Case No. 290 M/81 under Section 145 Cr.P.C. declaring possession of the petitioner over the proceeding land has been set aside.

(2.) AT the initiation of the petitioner, the above mentioned proceedinig under Section 145 Cr.P.C. was registered and proceeded with. The case of the petitioner was that he had purchased the land on 21.9.1973 but the sale deed was cancelled within a month by the vendor on 17.10.1973. There was an ekrarnama earlier in favour of the opposite parties and on the basis of that ekrarnama, regular sale deed was executed in favour of the opposite parties on 19.11.1977. After the sale the name of the opposite party was also mutated and Register II was issued and rent receipts were issued by the State of Bihar. The original court after consideration of the oral evidence and the documentary evidence placed held that cancellation deed against the petitioner was not proper as cancellation could be done only by the Civil Court and as such as the petitioner 's sale deed was prior to that of the opposite party, possession was declared in favour of the petitioner and then the opposite party preferred the revision petition, as mentioned above, and the. revisional court held that in a proceeding under Section 145 Cr.P.C. prima facie it is to be seen as to who was in actual physical possession. Ekrarnama in favour of the opposite party was prior to the sale deed of the petitioner and as per that ekrarnama, the opposite party was in possession and then the sale deed was executed in their favour in the year 1977. In the meantime there was a sale deed in favour of the petitioner and the same was again cancelled. A consolidation proceeding was also started but although the Consolidation Officer passed orders in favour of the petitioner, but on appeal the order was set aside and the matter is now pending before the revisional authority. As the mutation, rent receipts were in favour of the opposite parties, the revisional court by giving reasons had passed the impugned order by setting aside the order of the executive court.

(3.) THE only contention before this Court by the counsel for the petitioner was that the proceeding under Section 145 Cr. P.C. does not relate to consideration of title but it was with respect to the actual physical possession and by considering the oral evidence, actual physical possession was found in favour of the petitioner by the executive court which could have been set aside by the revisional court by considering the prima facie title.