MD.KASIM ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS criminal revision is directed against the order dated 15.9.1998 passed in M.P. Case No. 8/95 under Sec.145, Cr PC, whereby O.P. No. 2 has been declared to be in possession over vacant land measuring 3172 sq. ft. on Plot No. 515, Khata No. 15 Mauza Horiladih and further possession of O.P. No. 2 will be valid till passing of alternative order by a competent Court of law.

(2.) THE facts giving rise to filing of the revision application are that petitioner claimed to be in possession over the disputed area measuring 3172 Sq. Ft. on Plot No. 515 Khata No. 15 Mauza Horiladih including 800 sq. ft. whereupon there is a Khaparposh house of the petitioners since more than 45 years. It is claimed that Plot No. 515 Khata No. 15 Mauza Horiladih No. 132, consists of an area of 3962 sq. ft. In this area i.e., on 3962 sq. ft. there is khaparposh house measuring 800 sq. ft. The dispute in between the parties arose over the area of 3172 sq. ft. of land boundary wall of the said area fell down and O.P. No. 2 was getting the same repaired and in the course of that repairing of the boundary wall disputed between parties occurred. Due to this very dispute, O.P. No. 2 filed a complaint before the police station and the concerned police station submitted report to the O.P. No. 3. It is stated that there is no signature of the Investigating Officer; rather signature is of officer -in -charge of Boragarh outpost. Since there, is no signature of Investigating Officer on the said police report, the entire investigation becomes suspicious in view of the fact that whether there was dispute between the parties or not and both the petitioners as well as O.P. No. 2 have filed written statement before O.P. No. 3, O.P. No. 2 produced evidence in support of his case and it would be evident from the impugned order that the petitioner having produced their evidence, although no proper opportunity was given to the petitioner by the O.P. No. 3 to produce evidence. Petitioners made a prayer on 27.7.1998 for allowing them an opportunity to produce evidence but without taking the evidence of the side of the petitioners, learned Court below passed the impugned order. It is stated that when 800 sq. ft. of area is in possession of the petitioners, it cannot be a fact that remaining area of the 3172 sq. ft. cannot be in possession of the O.P. No. 2 and when the possession of the petitioner is over the disputed land, the possession of O.P. No. 2 cannot be declared. Petitioners are residing in the said disputed plot since more than 45 years; the claim of the O.P. No. 2 being in possession has no force. It is also stated that Sheikh Sohrab received advance from the petitioners and, therefore, question of making agreement with the O.P. No. 2 has no force. Petitioners had made out a case that there is no agreement took place on 11.1.1994 as stated by O.P. No. 2 and it has not been brought on record by the O.P. No. 2. It is also submitted that O.P. No. 3 did not give any opportunity to the petitioners to produce evidence and, therefore, the impugned order suffers from all these defects.

(3.) THE learned counsel appearing for the petitioners submitted that investigating officer has not signed on the report and on the other hand, officer -in -charge has signed the report and, therefore, that report cannot be considered to be report of the I.O. Another plea that has been taken is that the petitioners were in possession of 800 sq. ft. of disputed land and it cannot be believed that remaining portion shall be left to the possession of the other party. It is also stated that dispute in between the parties is with respect to that remaining portion of land. Another plea that has been taken is that the petitioners have not given sufficient opportunity to led evidence and without evidence led on behalf of the petitioner, case has been decided