NAINA SAH Vs. RAMRUP SAH

JUDGEMENT

(1.) The petitioners have come up to this Court against an order of the Magistrate of Bhagalpur by which he decided a proceeding under Section 145 of the Code of Criminal Procedure against them. The dispute was in respect of about 6 bighas of land, being one-third of a holding measuring 10 bighas 15 kathas and odd, recorded in the record of rights in the name of one Dhusar Sah. The opposite party, who constituted the first party before the learned Magistrate, were in possession of the remaining two-thirds for a long time. The petitioners, who constituted the second party before the teamed Magistrate, are agnates of the opposite party. According to the opposite party, the entire holding belonged to, and was in possession of, the ancestors of the parties when they were joint, but it was recorded in the record of rights in the name of Dhusar Sah, who was their benamdar. Subsequently, in 1906, a deed of relinquishment was executed by Dhusar Sah in favour of the joint family properties; and in 1907, the three branches of this family divided the entire holding amongst themselves. The opposite party represented two or these branches. In 1915, the third co-sharer is said to have transferred the disputed area along with his share to one Maghraj Ram Marwari. In 1932, Maghraj Ram Marwari is said to have sold it to Anant Ram Marwari, who sold it to the opposite party in 1939. The petitioners, that is, Naina Sah and Ramlal Sah, claimed to have purchased the disputed area from one Gowardan Ram, alleged to be the son of Dhusar Sah. It may be mentioned here that one Sita Ram Sah was also a member of the second party, but he supported the case of the opposite party. The opposite party, however, said that Dhusai Sah did not leave any son, and his widow left the village after selling the homestead land of Dhusar Sah in 1906; this homestead land was the only land which belonged to Dhusar Sah.

(2.) Both parties filed written statements, documents and several affidavits. The learned Magistrate considered the effects of the documents which came into existence from the period between 1906 and 1939, as also the rent receipts filed on behalf of the opposite party. He also referred to the seven affidavits filed on behalf of the second party, i.e. the petitioners in this Court, as also to the equal number of affidavits filed on behalf of the first party. The inference drawn by him with reference to the documents was that the petitioners were never in possession of these lands. He also considered the affidavits and referred to the statements contained in the affidavits filed on behalf of the first party, that is to say, the opposite party in this Court. With reference to the affidavits filed on behalf of the petitioners, the learned Magistrate observed;

(3.) The only question raised by the learned Advocate for the petitioners in this Court is that the affidavits filed on behalf of the petitioners have not been considered in accordance with law. It is stated at the Bar that the case was referred to a Division Bench mainly for the purpose of deciding in what manner a Magistrate is required to consider the affidavits filed in a proceeding under Section 145 of the Code. The relevant provision is contained in Sub-section (4) of Section 145 of the Code which reads as follows: