JAL DHARI MAHTO Vs. MOSST RUDIA

JUDGEMENT

(1.) THE four applications in revision are directed against the final order passed in four different proceedings under Section 145 of the Code of Criminal Procedure. THEse applications have been heard one after another as a common question of law has been raised in them and they are, therefore, being disposed of by this common judgment.

(2.) IN Criminal Revision No. 2586 of 1969 the petitioner is the first party to the proceeding. The subject-matter of the proceeding was 13.50 acres of land situate at village Tangra, Police Station Belhar, in the district of Bhagalpur. The learned Magistrate had referred the case to the Civil Court under Section 146 (1) of the Code of Criminal Procedure to decide the question of possession as he himself was unable to decide as to which of the parties was in possession. The learned Munsif of Banka by his order dated the 24th of July, 1969, came to the finding that Mosst. Rudia, the second party was in possession of the disputed land and sent the records of the case to the Magistrate for the needful. The learned Magistrate on receipt of the records declared Mosst. Rudia, the second party, to be in possession of the disputed land in conformity with the decision of the Civil Court on the 21st of August. 1969. The petitioner has filed the application in revision challenging the validity of the order of the Magistrate. in the supplementary affidavit filed in this Court it has been stated that 6 or 7 affidavits were sworn before Sri j. Ram Magistrate, or before some other Magistrate who was not in seisin of the proceeding at any time. The validity of the order of the Magistrate has been challenged on the ground that the findings of possession have been recorded by the Munsif on the basis of affidavits which were sworn before a Magistrate who was not in seisin of the case.

(3.) IN Criminal Revision No. 876 of 1970 the petitioners, who were the first party to the proceeding, have challenged the validity of the order of the Magistrate dated the 2nd of March, 1970, declaring the members of the second party to the proceeding to be in possession of the disputed land. The subject-matter of the proceeding was a number of plots of village Mathatanr, Police Station Sarath, in the district of Santal Parganas. The learned Magistrate had made a reference to the Civil Court to decide the question of possession under Section 146 (1) of the Code of Criminal Procedure. The reference was heard by the Subordinate Judge of Deoghar. The learned Subordinate Judge by his order dated the 6th of December, 1969, declared the second party to be in possession of the disputed land. On receiving the finding of the Subordinate Judge, the Magistrate by the impugned order dated the 2nd, of March, 1970, declared the second party to the proceeding to be in possession. IN the supplementary affidavit filed in the case it has been stated that the members of the second party filed affidavits of nine persons on the 22nd of May, 1968, before the Sub-Divisional Magistrate but those affidavits were not sworn before him but before Shri J.P. Sharma, Magistrate, 1st Class, Deoghar, who was not in seisin of the case. The validity of the order of the Magistrate has been impugned on the ground that the findings of possession have been recorded by the subordinate Judge on the basis of affidavits which were sworn in before a Magistrate who was not in seisin of the case.