Bhupal and Others vs Abdul Hakim and Others

James, J.—This application arises out of proceedings u/s 145, Criminal P.C. The subject-matter is a certain small plot of uncultivated land entered in the Record of Eights as gair mazrua malik with a note that it is parti qadim. The petitioners party claimed that this was a mahanfc asthan of long standing on which acts of worship were performed by Hindus; while the opposite party which included the zamindars claimed that it was used for worship at the time of the Id-ul-Fitr and Bakri-i-id festivals, certain portion of it having been given in wakf by the zamindars for that purpose. Thirteen witnesses were examined for the petitioners'' party and eleven for the opposite party. The Magistrate ignoring this evidence as a whole, attached the land u/s 146 relying exclusively on the evidence of the Superintendent of Police, The High Court set aside this order directing that the Magistrate should pronounce judgment after consideration of the evidence as a whole.

The Magistrate who had originally heard the case had been transferred and another Magistrate to whom the case was transferred for disposal re-heard all the witnesses of both parties and has now given judgment. He has found that the petitioners have failed to prove that the land is by long custom used as a mahant asthan, so that the entry in the Record of Rights-remains unrebutted which shows the land as in possession of the Mahomedan landlords. As these landlords had said that they had given portion of the land in wakf for the Id-ul-Pitr and Bakri-i-id prayers, the Magistrate accepted this statement and declared the possession of the second party, the Mahomedan party as a whole.

When the case was taken up on the second occasion, the first party came forward with a list of 174 witnesses whom they desired to summon. The Magistrate protested that the list was too long, where, upon the number was reduced to 92. The Magistrate said that the list was still too unwieldy and proposed that the best course would be to examine only those witnesses who had been examined when the case was before his predecessor. He accordingly summoned only thirteen witnesses for the first party; and Mr. Mazumdar on behalf of that party argues that in this the Magistrate acted illegally. It is to be observed that if the Magistrate who originally heard the case had not been transferred, there would have been no occasion for the examination of any further witnesses at all; but since that Magistrate had been transferred, it was necessary that the witnesses should be examined again. The Magistrate had power to issue process on these witnesses under Sub-section 9 of Section 145; but, it cannot be said that any obligation lay upon him to summon any witnesses other than those originally produced by the parties in this proceeding. I do not find that at the time any witnesses attended whose evidence was not accepted or that the first party actually produced any evidence which the Magistrate disregarded.

Mr. Mazumdar suggests that the entry in the Eecord of Eights is not essentially against the claim of the first party; but that entry describes the landlords as the persons in possession of the land and describes no rights vested in anybody else. This was pointed out by Muhammad Noor J. in the earlier proceedings with a remark that if none of the evidence was sufficient to show that the entry in the Record of Rights was wrong, that entry must prevail and the decision of the Magistrate must be in favour of the landlords. Mr. Mazumdar further objects that the proceedings ought to have been u/s 147, Criminal P.C.; but the procedure described by that section is the same as that prescribed by Section 145. I do not find any irregularity in this proceeding which would warrant interference in revision.

The application is dismissed.