BISHUN YADAV Vs. JUGAL KISHORE CHANDHARY

JUDGEMENT

(1.) -This is an application in revision by the petitioner who was the second party in the court below against the final order passed on 4th October, 1978 by the Executive Magistrate, Bhagalpur, declaring the possession of the first party who is opposite party here in a proceeding under section 145 of the Code of Criminal Procedure.

(2.) The learned Magistrate in his exhaustive judgment has been frank enough to hold at the concluding portion of it as follows :- "In sum total the witness on both sides failed to prove possession of either party over the land under proceeding". Mr. Gorakh Nath Singh, learned counsel for the petitioner, has made a capital out of this observation of the learned Magistrate and has rightly submitted that when the learned Magistrate himself was satisfied that the witnesses of both the parties have failed to prove the possession over the land in dispute, the finding of possession recorded by the learned Magistrate in favour of the first party obviously based upon some documents like sale deeds, survey entries and rent receipts cannot be sustained, as the documentary evidence may be taken in support of the oral evidence in the form of affidavit in this case, but they by themselves cannot prove actual physical possession over the lands in dispute between the parties. In support of his argument he has referred to a decision of this Court in the case of Arjun Singh and others v. Singheshwar Choudhary, AIR 1960 Patna 513), where Kanhaiya Singh, J. (as he then was), if I may say so with respect has very rightly observed as follows : -

(3.) Mr. Tara Kant Jha, learned counsel appearing on behalf of the opposite party, has very strenuously argued that the Magistrate, in the circumstances of this case, could not have done anything else than to declare possession of the first party on the basis of the documents which were to be taken as evidence of possession as the evidence of the witnesses in the form of affidavits of both the parties were equally unsatisfactory and were of no help in deciding the question of possession. According to him, in such circumstances, the learned Magistrate was certainly entitled to decide the question of possession on the basis of the documents filed by the parties and that is what he has done in this case.