BABULAL Vs. CHUNNILAL

JUDGEMENT

(1.) THIS is a reference made by the Additional Sessions Judge, Dhol-pur, by his order dated the 3rd of August, 1968 recommending under sec. 438 of the Code of Criminal Procedure that the Sub-Divisional Magistrate's order dated the 25th of May, 1966 under sec. 145 of the Code of Criminal Procedure be quashed the receiver be removed and Babulal be delivered possession of the property in dispute.

(2.) THIS is one of the chronic disputes under sec. 145 of the Code of Criminal Procedure relating to a field bearing Khasra No. 4518/1 measuring 4 Bighas and 5 Biswas situate in village Bari, District Dholpur. Chronologically the facts relating to the property in dispute, which require recall, are as follows. On the 10th of Jan. , 1964 Chunnilal, Sohanlal, Kishanlal and Ramswaroop, it is alleged, executed a deed of sale in favour of Babulal for the aforesaid property in consideration of a sum of Rs. 200/ -. On the 8th of January, 1966 Ramswaroop and 3 others instituted a civil suit seeking cancellation of the said sale deed inter alia on the ground that the intention was only to execute a deed of mortgage. While this suit was in progress on the 19th of January, 1966 Babulal moved an application under sec. 145 of the Code of Criminal Procedure relating to the aforesaid land. On the 22nd of January, 1966 the learned Sub-Divisional Magistrate passed a preliminary order and so also an order of attachment. After examining the affidavits and the documents produced before him on the 25th of May, 1966 he passed the final order declaring the possession to be that of Ramswaroop and others. Babu Lal felt aggrieved and preferred a revision application which came to be considered by the learned Additional Sessions Judge, Dholpur. It appears during the pendency of ths revision application before the Additional Sessions Judge on the 19th of May, 1967 the Munsif in the civil suit instituted by Ramswaroop and 3 others found inter alia that the possession was not that of Ramswaroop and others, this being issue No. 1. On the 27th of July, 1968 even the appeal of the suit was decided and the learned Additional District Judge, Dholpur, upheld the finding of the Munsif dated the i9th of May, 1967 inter alia on the question of possession. It was on the 3rd of August, 1968 that having been persuaded by the judgment of the two civil courts, namely, the Munsiff and the Additional District Judge, the learned Additional Sessions Judge felt that in the face of the concurrent findings of the two civil courts regarding the question of possession the order of the Magistrate dated the 25th of May, 1966 should not survive. He has accordingly, made the recommendation as indicated earlier.