RAM SAROOP Vs. BASANT RAM

JUDGEMENT

(1.) Petitioners have invoked this Court under Section 104 of the Constitution of Jammu and Kashmir for setting aside Sub-Judge, Samba July 31, 2007, holding Basant Ram-respondent in possession of land measuring 7 kanal 4 marlas comprised in khasra No. 63, 19 kanal 16 marlas in khasra No. 42, 10 kanal 3 marlas in Khasra No. 43 and 2 kanal 13 marlas in Khasra No. 61 situated at village Palli Tehsil Samba, while answering the reference made to him by the Executive Magistrate 1st Class, Tehsildar, Samba, who was unable to record a positive finding as to which one of the parties was in possession of the land in question in terms of the provisions of Section 145 of the Code of Criminal Procedure on the basis of the Affidavits, documents and material which the parties had produced before him.

(2.) Petitioners Sub-Judge has committed an error of law, apparent on the face of records, in omitting to consider the Affidavits which the parties had produced before the learned Magistrate, and in such view of the matter, his order of July 31, 2007 was illegal being in violation of the provisions of Section 146(1)(a) of the Code of Criminal Procedure which mandates the Civil Court to consider while deciding the reference that evidence too which the parties had produced before the Magistrate before reference of the case to the Civil Court,.

(3.) Respondent that the well reasoned order of the Subordinate Judge may not warrant interference by the court in exercise of the power of superintence when the petitioner, despite having been provided opportunity, had failed to lead any evidence to substantiate his claim to possession.