RAMDEO SINGH Vs. CHARKU SINGH

JUDGEMENT

(1.) THIS application in revision is directed against the final order dated the 15th December, 1970 passed by Shri P. Kumar, Magistrate, First Class, Garhwa, in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), to which the petitioners. were the second party and the members of the opposite party were the first party. The dispute related to an area of 9.47 acres of land appertaining to Plot Nos. 109, 110, 335 and 20 of village Binda, within the jurisdiction of Bhandaria Police Station, in the district of Palamau. After the parties filed their written statements, affidavits of witnesses and documents in support of their respective case, the Magistrate came to the conclusion that the first party was in possession of the disputed land and he made a declaration accordingly.

(2.) LEARNED counsel for the petitioners has assailed the order on the ground that the Magistrate did not consider the affidavits of the petitioners' witnesses properly and that he had fallen into an error in thinking that the documents raised a presumption of possession in favour of the first party.

(3.) IT is quite manifest that the learned Magistrate has completely misdirected himself in considering the question of actual physical possession of the disputed land. A decision as to which of the parties was in actual physical possession of the disputed land has to be taken by the Magistrate in accordance with the provision of Sub -Section (4) of Section 145 of the Code. The said provision clearly indicates that the Magistrate has to decide the question after perusing the written statements, documents and affidavits put in by the parties and after hearing them. The Magistrate has to consider not only the written statements and documents filed by the parties, but also the affidavits of the witnesses. There is no warrant in law that the documents filed by the parties shall be deemed to raise a presumption of possession in favour of the party who has filed them. This question has to be answered by taking into critical consideration all the three items mentioned in Sub -Section (4) of Section 145 of the Code, namely, the written statements, the documents and the affidavits. The Magistrate has to come to a. conclusion on the basis of the cumulative effect of those items and it is not open to him to clutch at one of the items, base his finding thereon and thereafter to discard the other items without critically perusing or examining them. In the present case, affidavits of two witnesses had been filed on behalf of the petitioners and three on behalf of the opposite party. The Magistrate merely made a passing reference to those affidavits after he fell compelled to hold that the opposite party was in possession by virtue of the erroneous presumption which he had raised in this behalf on the basis of the documents of that party. He did not critically examine the affidavits and it is quite plain that he simply performed the formality of merely referring to them in a casual way without applying his mind to the statements contained therein and assigning grounds for rejecting the same. This is certainly no consideration of the affidavits at all. Learned Counsel for the opposite party cited the decisions reported in Jaldhari Mahto v. Mosst. Rudia, 1973 BBCJ 628 : (1974 Cri LJ 1216) (Pat); Naina Sah v. Ramrup Sah, AIR 1965 Patna 104 : (1965 (1) Cri LJ 328) and Ganesh Singh v. Bijoy Kumar Singh, (1972 Pat LJR 597). Those cases had been decided on quite different facts and in none of them it was held that the affidavits need not be considered and, that a decision can be given merely on the basis of documents, completely ignoring the affidavits filed by the parties.