LAKSHAMI NARAIN SINGH Vs. JUGESHWAR JHA

JUDGEMENT

(1.) THE reference and the application in revision have been heard together as they arise out of the same matter. In the application, in revision, the first party are the applicants and in the reference, the matter has been placed before this Court by the 4th Additional Sessions Judge of Patna, recommending that the order of the Magistrate declaring possession in favour of the second party should be set aside, because in his opinion the case would be covered by a decision of this Court in the case of -- 'Gobordhan Das v. Suresh Chandra', A. I. R. 1942 Pat 489 (A). THE revisional application arises out of the order of the Magistrate in the proceedings under Section 145, Criminal P. C. where he was of the opinion that he could not decide possession of either party with reference to all the plots except plot No. 23, and, consequently, attached those plots under Section 148 of the Code.

(2.) I shall deal with the application in revision first. A mere perusal of the order of the magistrate indicates that there has been no real discussion of the evidence on the question of possession by him. There were numerous plots involved in the dispute and the subject matter of the proceedings under Section 145 of the Code, and in support of possession of either party a number of witnesses had been examined and a large number of documents exhibited. The magistrate no doubt sets out as to who are the witnesses in favour of a particular party but does not discuss their evidence with any clarity. Consequently, a Court of revision is not in a position to know whether really the evidence was such that no decision could be arrived at on the question of possession in favour of either party. It has been well settled that a magistrate should resort to the provisions of Section 146 of the Code only when he finds the evidence on the question of possession of both the parties so equally balanced that he cannot possibly make up his mind on such evidence as to who was in possession, I do not gather from the judgment of the magistrate any indication as to whe- ther the evidence on the question of possession was really so evenly balanced between the parties as to make it impossible for him to decide as to who was in possession. Indeed, the extent of confusion in his mind is fully demonstrated with reference to the land in dispute regarding khata No. 34. In his judgment he stated that the second party had filed a titie suit for this land and this fact went against the case of possession of the second party over it. If that was his conclusion, obviously, he should have found members of the first party to be in possession of the lands covered by khata No. 84. It seems to me that the magistrate has made no real effort to analyse the evidence between the parties and determine the question of possession one way or the other. His order attaching the land in dispute other than plot No. 23 of khata No. 73 is, therefore, set aside and the case is remanded to him for rehearing and disposal according to law.

(3.) HAVING regard to the view which I take, I would discharge the reference made by the Additional Sessions Judge of Patna.