BISHWA MOHAN PRASAD SINGH Vs. SAROJ KUMAR SINGH

JUDGEMENT

(1.) The 1st party-petitioners have preferred this revision application against the order dated 29.11.2001 passed by the learned Sub-Divisional Magistrate, Majhaul in Case No.1623 (Misc.) of 1981 by which the possession over the land in dispute has been declared under Section 145 Cr.P.C. in favour of the 2nd party-opposite party. The land in dispute is appertaining to Mauza- Purpathar in Tauzi No.1233, Khata No.38, Plot Nos.24, 26, 33, 114, 115, 127 and 128 measuring 4 Bighas, 8 Kathas and 8 Dhurs, but on the spot these lands are meansuring 4 Bighas 11 Kathas and 8 dhoors. The facts rising to this application are that an application was filed by the petitioner (original) on 10.09.1981 before the learned Sub-Divisional Magistrate, Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 3 Majhaul to initiate a proceeding under Section 144 Cr.P.C. On which, a report was called for from the concerned police station. After receipt of the report, the Sub- Divisional Magistrate initiated a proceeding under Section 144 Cr.P.C. on 16.09.1981 and subsequently, it was converted into a proceeding under Section 145 Cr.P.C. on 14.11.1981.

(2.) The case of the 1st party petitioner is that the land in dispute alongwith other lands were sold in auction on rent suit and purchased by the then landlords Sri Jagarnath Prasad Singh and Sri Balbhadra Prasad Singh, resident of village-Nayanagar, vide Case No.93/1910 and Case No.48/1911. The auction sale was confirmed by the 1 st court of Munsif, Begusarai on 21.07.1911 and delivery of possession was affected over the lands in dispute and other lands on 16.11.1911. Both the auction purchasers partitioned their lands privately including the lands in dispute, which, were allotted to the share of Jagarnath Prasad Singh, who came in possession of the same. After the death of Jagarnath Pd. Singh, his only son Ramautar Singh inherited the disputed land and came in possession thereof. The said Ramautar Singh settled the disputed Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 4 lands by virtue of Hukumnana dated 1st Asin, 1356 F.S. in favour of Smt. Chandani Devi, wife of the petitioner and since then she is coming in exclusive possession of the same. She was paying rent to the ex-landlords and after vesting of Zamindari her name was mutated in the revenue records of the Anchal and she is paying rent regularly and rent receipts in proof of the payment of rent were regularly issued in her favour.

(3.) The case of the 2nd party-opposite party is that the lands, in question, were recorded in the name of their ancestors in the cadastral survey and after the death of the recorded tenants, they have inherited the lands being their heirs and claimed to be in possession thereof. They have further claimed that the recorded tenants have executed several mortgage deeds with respect to the lands in dispute in favour of the relatives of the petitioner as well as in favour of the then landlords. The Ex-landlord of the Tauzi had submitted the name of the recorded tenant in the Jamabandi return submitted at the time of vesting of Jamindari and later rent receipts were also issued vide Mutation Case No.3/15 of 1980-81 (Annexure-B to the counter affidavit of the opposite party). Thus the opposite Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 5 party claimed their possession over the disputed lands on the basis of redemption of mortgaged as well as on the basis of recent mutation order passed in their favour. Both the parties adduced their oral as well as documentary evidence in support of their respective claims before the learned Magistrate. The learned Magistrate has found and declared the possession of the 2nd party over the land in dispute vide order dated 22.04.1988 (Annexure-C to the counter affidavit of the opposite party). The petitioner challenged the aforesaid order dated 22.04.1988 passed by the learned Executive Magistrate in Cr. Rev. No.243/88, which was dismissed on 30.03.1994 confirming the order of the learned Magistrate (Annexure- D to the counter affidavit of the opposite party). Thereafter, the petitioner challenged both the orders of learned Executive Magistrate as well as the learned Additional Sessions Judge-V, Begusarai in Cr.W.J.C.No.554/94 before the Patna High Court, which was allowed vide order dated 4.07.1995 and the case was remanded to the learned Magistrate with direction that he will afford an opportunity to the parties to prove their documents and thereafter he will dispose of the proceeding Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 6 in accordance with law (Annexure-E to the counter affidavit). The opposite party filed S.L.P. in the Hon'ble Supreme Court vide S.L.P. (Cr.) No.356/96, which was later on dismissed (Annexure-G to the counter affidavit). In the meantime, the petitioner filed a petition in Misc. Case No.1523/81 under Section 145 Cr.P.C. before the learned S.D.M., Majhaul, Begusarai. The learned Magistrate passed an order on 23.01.1996 against the opposite party and declared the possession of the petitioner (Annexure-H to the counter affidavit). The opposite party challenged the aforesaid order dated 23.01.1996 vide Cr. Rev. No.14/97 before the learned Sessions Judge, which was heard and allowed vide order dated 30.07.1999 by the learned Additional Sessions Judge, F.T.C.VII, Begusarai and remanded the case before the learned S.D.M. for disposal in accordance with law. The learned S.D.M., Majhaul passed the order on 29.01.2001 in favour of the opposite party, which has been challenged in this criminal revision. Heard the learned counsel for the petitioner and the learned counsel for the opposite party.