ANCHI Vs. BALU RAM

JUDGEMENT

(1.) KHASRA No. 115 measuring 53 bighas l biswa situate in Murdakiya is the bone of contention between Smt. Anchi widow of Baxiram and Baluram alias Balmukand who claims to be the adopted son of Baziram. under Section 145, Criminal Procedure Code, The dispute is regarding half the share of this land. On August 17. 1971. an application was moved under Section 145, Criminal Procedure Code before the Sub-Divisional Magistrate, Ratangarh, by Smt. Anchi complaining that Balurara did not permit her to cultivate her share of the land and there was an apprehension of a breach of the peace. On August 28. 1971 the Station House Officer, Bhinvsar made a report and a preliminary order was drawn on September 16, 1971. The property was attached on that very day and the Tehsildar was appointed as a Receiver. The parties filed their written statements and also affidavits besides documentary evidence. The learned Sub-Divisional Magistrate by his order dated May 14, 1973, came to the conclusion on the basis of documentary evidence that it was Baluram who was in possession of the property in dispute. He, however, added that this conclusion of his was fortified by affidavits, A revision was taken by Mst. Anchi before the learned Additional Sessions Judge. Churu who examined the affidavits and the documentary evidence and placing great reliance on an admission of Smt. Anchi came to the conclusion that Baluram was in possession of half share which was in dispute of khasra No. 115. Smt. Anchi continues to be dissatisfied and she is before me in revision.

(2.) MR. Surolia learned Counsel for the petitioner urges that the affidavits in this case both filed by Smt. Anchi and Baluram were not in accordance with law, because the verification as required by Order 19, Rule 3, Civil Procedure Code does not indicate the source of information. He further submits that the affidavits having been considered the judgements of both the Courts are vitiated and Section 7 of the Oaths Act, 1969 does not cure the defect as the form given in the schedule comes into function after the affidavit has been duly verified as required by Order 19, Rule 3, Civil Procedure Code. He placed reliance on a number of cases to which I shall presently refer.

(3.) MR. Bapna however, submitted that the learned Sub-Divisional Magistrate clearly said that he wanted to give no importance to the affidavits filed by the parties because the question of possession in the case stood settled by unimpeachable documentary evidence. Therefore, even if the affidavits are ignored then too the possession of Baluram stands proved and there is no miscarriage of justice warranting any interference in the revisional jurisdiction. Placing reliance on Bobda v. Smt. Mangi 1970 Raj LW 76 the learned Counsel urged that a Division Bench of this Court also said that even if the affidavits are ignored because of the lacuna in the verification and the conclusion is otherwise supportable remand is not the proper remedy in an old case. He further submitted that civil litigation is already in progress between the parties and the decisions thereof so far have been in favour of Baluram.