ATMA RAM Vs. MOOL CHAND

JUDGEMENT

(1.) This is an application in revision filed by Atma Ram and his son Mukut Chand against the order of the Additional Sessions Judge, Baran, dt. May 1, 1975, by which the order passed by the Sub-Divisional Magistrate, Baran, on April 25, 1972, in a proceeding under S.145, Cr.P.C. was upheld. It will not be out of place to mention that the Sub-Divisional Magistrate, Baran, held an enquiry into the respective claims of the parties as respects the fact of actual possession of the land in dispute and came to a conclusion upon evidence led by the parties that the disputed land was in possession of the non-petitioners at the date of the preliminary order and within two months next before that date. He, accordingly, declared the non-petitioners to be entitled to possession of the land in question until evicted therefrom in due course of law and directed the receiver to hand over the possession of the land to them along with the mesne profits, if any, after deducting the commission/fees of the receiver and the expenses incurred by him in managing the land.

(2.) As against this order of the Sub-Divisional Magistrate, the petitioners moved the Additional Sessions Judge, Baran, in revision. The Additional Sessions Judge found no fault with the order of the Sub-Divisional Magistrate and dismissed the revision petition. The petitioners, therefore, have come up to this Court to challenge the orders passed by both the courts below on the following grounds:-

(3.) Mr. R.N. Surolia, appearing on behalf of the non- petitioners, frankly submitted before me that the affidavits put in by the parties and their witnesses are not properly sworn by them. I also have critically examined the affidavits put in by Atma Ram, petitioner, and his witnesses, namely, Mukut Chand, Deep Chand, Bhawani Shanker, Kesra, Madho Lal, Mool Chand Mali, Mool Chand Brahmin, Onkar, Shivnath and Jugal Kishore. Likewise, I perused the affidavits put in by the non-petitioners and their witnesses, namely, Mool Chand, Mangilal, Kanhaiya Lal, Kastura, Ram Narain, Kishan, Chittar Lal, Mangi Lal, Panna Lal, Ratan Lal, Narain and Dhanna Lal. All these affidavits filed by the parties and their witnesses were not properly attested and verified. The affidavits put in by Atma Ram, Mukut Chand, petitioners, and their witnesses, namely, Deep Chand Bhawani Shanker and Kesra Ram on Aug. 31, 1970 do not even contain any verification by the deponents. The other affidavits brought on the record were not properly attested inasmuch as it cannot be gathered from the affidavits whether a person authorised to administer the oath either by himself or by an official empowered by him in this behalf had attested them. There is no endorsement by the attesting authority that oaths were administered by him. The mere endorsement i.e. "Attested," made on each affidavit and initialled by the officer attesting them is not a valid attestation, because it does not show that the contents of the affidavits were read over to the deponent and that the deponent admitted them to be correct before the attesting officer. The amendment made in S.145, Cr.P.C. in the year 1956 enabled the Magistrates to decide the question of possession on the basis of affidavits put in by the parties and their witnesses instead of recording their evidence in every case and if the affidavits were not properly verified and attested they could not be safely used in evidence as the decision of the learned Sub-Divisional Magistrate by and large was based on the evidence before him in the form of affidavits, which were not properly verified and attested, I am unable to uphold it. Of course, I am of the view that a proper opportunity to the parties should be afforded to make good the defect in their affidavits and in the affidavits of their witnesses. In my opinion, it would be improper and unjust to throw away this case merely because there has been formal defect in the form of attestation and verification of the affidavits.