AGNU RAM MAHLI Vs. BHOLA MANJHI

JUDGEMENT

(1.) THIS revision application is directed against the order dated 29.10.1994 passed by Shri R.S. Singh, Executive Magistrate, Ramgarh in Case No. M 232 of 1987 (T.R. No. 27 of 1994) by which he declared possession of the opposite parties/Second Party members.

(2.) A proceeding was started under Section 144 Cr PC on the basis of a police report in respect of 2.47 acres of land of plot No. 119, Khata 0.3, situated in village Govindpur P.S. Gola District Hazaribagh and later on it was converted under Section 145 Cr PC Both parties appeared and filed their respective written statements, witnesses were examined and the documents were also filed. After hearing both sides, the learned Court below passed the order impugned against which this revision application has been filed.

(3.) THE learned counsel appearing on behalf of the petitioner submitted that the learned Court below committed gross error in declaring the possession of opposite parties/ Second party members without appreciating the evidence on record as well as the documents produced have not been properly exhibited nor the evidence of witnesses were discussed, as the learned Magistrate himself admitted that no much significant can be given to the oral witness of both parties. On the other hand, the learned A.P.P. contended before me that the oral evidence adduced before the Court below has not been discussed by the learned Magistrate. It is an admitted position that the learned Magistrate has not discussed or appreciated the oral evidence. In a proceeding under Section 145 Cr PC the magistrate is to be confined as regards possession of either parties in respect of the land in -question. The proceeding under Section 145 Cr PC has to be decided on the examination of witnesses and documents proved in accordance with the evidence Act. The Magistrate is concerned only with the question of actual physical possession over the land in question. He cannot give possession to a party on a finding that he has a better title over the land. Since the oral evidence though adduced in the case has not been discussed, hence without entering into merit of this case, I find that the order passed by the learned Magistrate in the present case has got to be set - aside and the case has to be remanded back for passing order afresh on the material already available on the record.