Bhuwal Prasad vs IInd Addl. District and Sessions Judge and Others

P.K. Jain, J.—Heard Sri Anoop Kumar Srivastava, learned Counsel for the Petitioner.

Notices were sent to the Respondent Nos. 3 and 4 through registered post which have not been returned back served or unserved. Service is being deemed to be sufficient. No counter affidavit has been filed.

By the present petition, the Petitioner challenges the judgment and order dated 6.5.1997 (Annexure 5 to the writ petition) whereby Criminal Revision No. 55 of 1995 filed by Respondent Nos. 2 and 3, was allowed by the revisional court reversing the findings of the trial court and directing the parties to maintain status quo till rights of the parties were decided by competent civil court.

The disputed land belonged to Ram Piyarey. Respondent Siya Ram and Ram Milan are admittedly sons of Ram Piyarey. The said Ram Piyarey died some times in December, 1992. The Petitioner''s case is that on 21.9.92 Ram Piyarey had executed a will in his favour and during his life-time, he was in possession of the disputed plot of land. On the death of Ram Piyarey, he moved an application for mutation of his name in the revenue records'' and then a (sic) arose between the parties. The Respondent Nos. 3 and 4 attempted to dispossess the Petitioner forcibly and there was an apprehension of breach of peace.

On a police report regarding existence of apprehension of breach of peace between the parties, a preliminary order u/s 145(1), Code of Criminal Procedure was drawn by the learned Magistrate and the disputed land and crop standing thereon were attached. Thereafter the parties adduced evidence with regard to their respective case of possession. S.D.M., Bansi, district Siddharthanagar, by judgment and order dated 4.7.95 (Annexure 4 to the writ petition) held that the Petitioner was in possession of the disputed land and crops were sown by him. Therefore, he directed the release of the land as well as attached crops to the Petitioner. This order of the learned Magistrate was challenged by Respondents No. 3 and 4 in Criminal Revision No. 55 of 1995. Revisional Court reappreciated the evidence on record and reversed the findings of the trial court holding that the crops be given to the Respondent Nos. 3 and 4 and with regard to the land, passed the order directing the parties to maintain status quo till the rights of the parties were decided by the competent civil court.

Judgment and order of the revisional court is challenged mainly on the ground that the revisional court has travelled beyond its jurisdiction in substituting its own findings of fact arrived at by the trial court and that the findings of fact arrived at by the trial court were supported by reliable evidence and cogent reasonings.

I have perused the judgment and order of the trial court as also the revisional court. The trial court held possession of the Petitioner over the disputed land and the crops mainly on the ground that the police in its report dated 3.4.93, (Annexure 2 to the writ petition) has categorically stated that the land was in possession of the Petitioner and the crops in question were sown by him. The trial court has also observed that the Petitioner did not file any objection against the report of the police. The second ground on which finding in favour of the Petitioner was given was that the evidence of Respondents No. 3 and 4 was not reliable as the statements of the witnesses were contradictory. The revisional court reversed these findings on the ground that the report of the police was not admissible in evidence as it was based upon hearsay evidence of witnesses mentioned in the report and that the evidence adduced before the Court established possession of the revisionists viz., Respondents No. 3 and 4 in the present petition.

Having considered the material on record and also having perused the judgments and orders of the courts below, I am of the view that the judgments and orders of both the courts below deserve to be quashed and the matter deserves to be remanded to the trial court for decision afresh in the light of the observations made herein below.

As already pointed out above, the learned Magistrate relying mainly upon the police report (Annexure 2 to the writ petition) wherein it was stated that the land was in possession of the Petitioner and the crops were sown by Bhuwal Petitioner, the court below has committed error in relying upon the police report so far as the question of possession is concerned. The police report is called for only with regard to the satisfaction of the Magistrate concerned regarding existence of apprehension of breach of peace. The question of possession has to be decided by the learned Magistrate himself on the basis of the evidence adduced by the parties in support of their respective claims. It is the duty of the Magistrate to decide the question of possession himself on the basis of evidence adduced before him and he cannot delegate his powers in this regard to the police. Learned Counsel for the Petitioner contends that there was other reliable evidence also and even if the police report is ignored, there would be sufficient reliable evidence to justify the finding of the learned Magistrate. A perusal of the judgment and order of the trial court would show that the learned Magistrate was greatly influenced by the observations in the police report which were not challenged by Respondent Nos. 3 and 4 by filing objections against the said report. In my view, there was no need of filing separate objections when the Respondents had filed written statement claiming their possession and also leading evidence in support thereof. A perusal of the judgment of the trial court shows that mutation proceedings on the application of the Petitioner were pending before concerned revenue authorities although name of Respondents No. 3 and 4 was mutated in the revenue records on the basis of succession. Revisional Court has specifically observed in its judgment and order that by order dated 25.1.93, the names of Ram Milan and Siya Ram were already mutated in the revenue records and the application of Bhuwal Prasad for mutation of his name on the basis of the alleged will was rejected by an order dated 30.3.95. Therefore, on the basis of the alleged will, possession of Bhuwal Prasad could not have been held by the learned Magistrate. As regards the oral evidence, the learned Magistrate has rejected the evidence of Respondents on flimsy grounds and he appears to have adopted double standard in appreciating the evidence of the parties. As regards the judgment and order of the revisional court, it is well-settled that the revisional court cannot substitute its own findings of fact by reappreciating the evidence of the parties. It can simply point out the perversity in the findings of the courts below and also the illegality in arriving at such finding. The revisional court ought to have, instead of substituting its own findings of fact, pointed out the error of law committed by the learned Magistrate and should have remanded the matter to the trial court for decision afresh in the light of the said observations.

In this view of the matter, the judgment and order of the learned revisional court can also not be sustained.

In view of the discussions made above, petition is allowed. Judgments and orders of both the courts below are quashed and the learned Magistrate is directed to decide the question of possession afresh in the light of the observations made in the body of the judgment within six months from the date a certified copy of this order is presented before him. He shall serve notices upon Respondent Nos. 3 and 4 and give proper opportunities to the parties before disposing of the question of possession. Stay order dated 11.7.97 shall stand vacated.