JAN MOHAMMAD Vs. JIVAN KHAN

JUDGEMENT

(1.) 1. This case has been reported by the Sessions Judge of East Berar, under Section 438, Criminal P.C., with a re-commendation that possession of party No. 2, Jan Mohammad, should be maintained and the property attached by the Magistrate, under the pro. 2 to Clause (4), Section 145, Criminal P.C., should be given in his possession. The learned Sessions Judge observes in his report that the Magistrate has held that Jan Mohammad was in possession of the property in question. On making a reference to the final order passed by the Magistrate on 30th January 1928, I find, however, that it contains no finding to the effect that party No. 2, Jan Mohammad, has been in possession. The material portion of the order is contained in paras. 3, 4 and 5, and is to the following effect:

(2.) THE Magistrate has given two reasons for dropping the proceedings. The second reason which is not quite intelligible as a reason for dropping proceedings makes a reference to the admission of Gopikabai, the lessor of party No. 1, Jiwankhan and Sulemankhan in regard to Jan Mohammad's possession involved by implication in her instituting the suit for possession against the latter. This reference to the suit and to Gopikabai's implied admission seem to have been construed by the learned Sessions Judge as amounting to a finding of the Magistrate in regard to Jan Mohammad's possession at the date of the preliminary order. I am clearly of opinion that the said reference cannot admit of bearing such a construction. Nowhere in the order I find any finding to the effect that party No. 2, Jan Mohammad was in possession of the property in question at the date of the preliminary order. In absence of such a finding no order can be passed in his favour declaring him to be entitled to possession of the property until the other party is evicted therefrom in due course of law, and ordering restoration of possession to him. In view of these reasons I find myself unable to accept the recommendation of the learned Sessions Judge.

(3.) WITH regard to the reference in para. (4) of the order of the Magistrate to the institution of a suit for possession by Gopikabai against party No. 2, Jan Mohammad and her implied admission of Jan Mohammad's possession on the date of the suit, it may be observed that no attempt was made by party No. 2, Jan Mohammad who filed the copy of the plaint referred to in para. (4), to tender formal proof of its having been duly signed by the plaintiff 1, Gopikabai and plaintiff 2, Mohanlal. In absence of such a formal proof the copy was, strictly speaking, not admissible in evidence. Again as the admission of party No. 1's lessor, Gopikabai, evidenced by the institution of the suit on 29th October 1927 was made nearly six months after 20th April 1927 the date of the lease given by Gopikabai to party No. 1 and proved by the evidence of party No. 1's witness 1, Laxmansuoh an admissionof the lessor made some time after the granting of the lease could not be relevant against party No. 1, Jiwankhan and Suletnan who were not Gopikabai's representatives in interest on the date of such admission, in so far as the factum of possession was concerned, either under Section 21, or under any other section of the Evidence Act. Such an admission, being neither relevant nor admissible in evidence, could not, in view of the pro. 1, to Section 165, Evidence Act, form the basis of a finding in favour of Jan Mohammad's possession.