KRISHNA SINGH Vs. BRAHMDEO RAM

JUDGEMENT

(1.) This is an application in Revision by the Petitioner, who was the 2nd Party, against an order passed on the 8th July, 1973, by the Sub-divisional Magistrate, Dinapore, declaring the possession of the opposite party over the land in dispute.

(2.) The learned lawyer, appearing on behalf of the petitioner, has submitted that the impugned order of the learned Magistrate has got to be sent back on remand for deciding the question of possession afresh, as the learned Magistrate has committed a glaring mistake and has omitted to consider the documents and affidavits, as he should have. It has also, been submitted that the learned Magistrate has not looked into some of the documents, that were filed, by the petitioner, which would show that the opposite party had admitted to have been dispossessed from the land in dispute long before the initiation of the proceeding, and the learned Magistrate had to decide the question of possession o the parties just two months prior to the initiation of the proceeding.

(3.) It has been rightly submitted that if A party has been out of possession over two months before the initiation of the proceeding under Section 145, Code of Criminal Procedure, the Magistrate cannot declare possession of such person under Section 145, Coda of Criminal Procedure, as Section 145(4) of the Code of Criminal Procedure, second proviso, clearly lays down that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date. So, it has been argued that if the opposite party could prove that ho was dispossessed within two months of the data of the initiation of the proceeding, then the magistrate could have been justified in treating him to be in possession, as having been dispossessed within two months from the initiation of the proceeding. But, if the opposite party was out of possession long before two months of initiation of the proceeding, then the Magistrate could not declare his possession, It has been submitted that some documents and affidavits were filed by the petitioner in support of his claim of possession, including the deposition of the son of the opposite party in respect of his claim of possession over the land in dispute. But, the learned Magistrate in his very brief order has merely remarked that on considering the facts and circumstances of the case and the evidence on record, he came to the conclusion that the opposite party was in possession of the land in dispute, without indicating in his impugned order as to whether he has applied his mind to the documents, that were filed in respect of the claim of the petitioner. It has been contended that the learned Magistrate has merely stated that the parties had filed affidavits and that the petitioner had filed a few more affidavits than the opposite party, but he has not indicated in his impugned order as to what the witnesses, in their affidavits, have stated and how he has come to prefer the statement made on oath on behalf of the opposite party and not on behalf of the petitioner.