NANDKISHORE SINGH Vs. BIGAN LOHAR

JUDGEMENT

(1.) This is a reference by the Deputy Commissioner of Palamau recommending to this Court to set aside an order under Section 145, Criminal P.C., passed by a First Class Magistrate at Daltangunj. The dispute related to 12 bighas of land in village Bohita claimed by the first party Bigan Lohar to be held by him as a raiyat under the second party. The second party claimed it to be in his own possession as bakasht. The first party examined himself and two witnesses and was unable to produce any documentary evidence in support of the settlement of the land with him. He and his witnesses however deposed that he was in cultivating possession of the land. The second party examined witnesses whose evidence the Magistrate found not only not convincing but positively suspicious.

(2.) In the result although he had observed in his judgment that the evidence adduced by the first party was by itself not sufficient to establish his case against the second party, the Magistrate passed an order in favour of the first party because in his opinion his case had derived support from the weakness of the evidence for the other party. In this connexion he took into consideration the fact that the first party offered to give up his claim if the opposite party's witness would take a special oath on Bhagwat Gita; but the witness refused to do so. There had been a previous dispute between the parties regarding 5 bighas of land which is the subject-matter of these proceedings. In that case Bigan had prosecuted the members of the second party under Section 447 alleging that they attempted by ploughing his field forcibly to dispossess him of 5 bighas. The case resulted in acquittal.

(3.) The grounds for the reference are that although the judgment of this case had not been given in evidence at the hearing the acquittal indicated that the second party had successfully ousted the first party at least from these 5 bighas. Secondly, it is said that the Magistrate should not have allowed himself to be influenced by the conduct of the first party in refusing to take a special oath and further that when the first Magistrate had found the evidence for the first party unsatisfactory, he should not have passed an order in his favour merely because of the weakness of the evidence for the second party but should have attached the land under Section 146, Criminal P.C. As regards the judgment of the criminal case under Section 447, the trial Court was under no obligation to take it into consideration when neither party chose to put it in evidence before him.