LAWS(PAT)-1978-12-4

SHEONANDAN ROY Vs. RAMJIWAN THAKUR

Decided On December 15, 1978
SHEONANDAN ROY Appellant
V/S
RAMJIWAN THAKUR Respondents

JUDGEMENT

(1.) This is an application by the second party against a final order passed by Shri S. K. Chakarwarty, Executive Magistrate Hajipur in Case No. MI-168/70/ Tr. No. 32/77/TR-11/78 in a proceeding under section 145 of the Code of Criminal Procedure. The 1st party has been declared to be in possession of the disputed land.

(2.) This case has to be remitted back for re-affirming the affidavits in view of the point raised by the learned counsel for the petitioners that out of the 33 affidavits filed by him, 32 have been rejected because they were not sworn in accordance with the requirement of Order XIX, Rule 3 of the Code of Civil Procedure. Similarly, 5 affidavits of the 1st party have also been rejected. It is submitted that in view of the Full Bench decision in Smt. Radha Devi v. Mani Pd. Singh ana others, (1978 BBCJ 626), the learned Magistrate should have allowed the parties to re-affirm the affidavits in accordance with law. As there is substance in the aforesaid submission it is not necessary for me to state the facts of the case and the claim of the parties.

(3.) At page 23 of the certified copy of the order, the learned Magistrate has stated that out of the 33 affidavits filed on behalf of the second party only one affidavit of the deponents, namely, Yaddu Rai is valid and legal as provided under Order XIX, Rule 3 of the Code of Civil Procedure and other affidavits of the second party are illegal and invalid as they are not within the purview of the provisions as provided under Order XIX, Rule 3 of the Code of Civil Procedure and so also on perusal of the affidavits filed on behalf of both the parties, it is clear that one affidavit of the 2nd party cannot prove actual possession of the second party on the disputed lands. This indicates that the affidavits of the second party which may have a vital bearing on the question involved in this dispute has been ignored. In the aforesaid Full Bench decision of this Court, it has been held in paragraph 14 as follows :-