Karimullah Khan and Others vs Champa Khojwa and Others

B.D. Singh, J.—This application by Karimullah Khan and three others is directed against the final order dated the 24th September, 1974, passed by the Magistrate in a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as ''the Code''). In the said proceeding the petitioners were the members of the second party, whereas Champa Khojwa (Opposite party No. 1), daughter of Mobarak Mian, was the sole member of the first party. Opposite party Nos. 2 to 6 were the members of the third party. Opposite Party Nos. 7 to 9 were the members of the fourth party in the said proceeding. It may be noted that Gopaljee Prasad (opposite party No. 8) died as it appears from the order dated the 23rd August, 1976, of this Court in his place his heirs were put on the record.

In the proceeding the dispute relates to land measuring 12 bighas 5 kathas and 7 dhurs comprised under various plots in Khata Nos. 154, 269, 230/234, 271 and 272 situated in two different villages, namely, Mathauli and Hatsaria in the District of West Champaran. It may be mentioned that initially a proceeding u/s 144 of the Code was initiated at the instance of the first party against the members of the third party by order dated the 11th June, 1968. Before initiating the proceeding u/s 144 of the Code, the Magistrate called for a police report and the police had submitted the report on the 10th June, 1968. During the 144 proceeding, it appears that the members of the second party also were impleaded. Later on the 18th September, 1968, the said proceeding was converted into one u/s 145 of the Code when the members of the fourth party were impleaded. The members of all the parties filed written statements. The first party claimed her exclusive possession over the disputed lands whereas the second party also claimed exclusive possession. Similarly, members of the third party claimed their exclusive possession whereas members of the fourth party claimed possession of 9 bighas and odd out of the disputed land to be in their possession by virtue of sale deeds executed by the members of the third party in favour of them during the pendency of 145 proceeding. All the members of the different parties to the proceeding filed affidavits and documents in support of their respective cases of possession. The Magistrate in the impugned order after considering the materials on the record including the affidavits and the documents found that the members of the third party were in possession of the disputed land even prior to the starting of 144 proceeding and accordingly declared their possession u/s 145 of the Code over the disputed land holding that they were entitled to retain the possession until they were evicted in due course of law and also any interference in such possession was strictly forbidden. He further declared members of the fourth party who had purchased the land during the pendency of 145 proceeding to be deemed to be in possession only through their vendors and as such no separate order was necessary.

Learned Counsel appearing on behalf of the petitioners has assailed the impugned order and has raised following points for consideration by this Court:

(i) Although the third party''s case was that they purchased only 11 bighas 8 kathas and 17 dhoors, the possession over 12 bighas 5 kathas and 7 dhoors has been wrongly declared by the Magistrate.

(ii) The Magistrate erred in holding that the possession, as found by the police in favour of the petitioners over the land, was not the kind of possession as required u/s 145 of the Code.

(iii) The police found the petitioners in possession on 10th June, 1968, and the proceeding u/s 144 of the Code having been converted into one u/s 145 of the Code on 18th September, 1968, nearly 100 days after the finding of the police regarding the possession was bad in point of law, and was contrary to second proviso to Sub-section (4)of Section 145 of the Code. In view of the said finding of the police regarding the possession, in the circumstances, according to the petitioners'' counsel, the petitioners ought to have been declared possession.

(iv) The affidavits filed on behalf of the third party were not in accordance with the provisions contained under Order XIX, Rule 3 of the Civil Procedure Code. Therefore, these affidavits were not admissible in evidence.

(v) The Magistrate having held that when the evidence was equally balanced it was necessary to go into the title, illegally held that although apposite party Nos. 5 and 6 were Muslims, they being Khojwas were governed by customary law of succession and thereby the learned Magistrate has misconstrued Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937, and

(vi) The learned Magistrate has committed various error of records which has vitiated the impugned order.

Before taking up discussions on the above submissions made by the learned Counsel for the petitioners on the various points referred to above, it will be necessary to state briefly, the cases of the contesting parties. It may be noticed that in this Court none has appeared on behalf of opposite party No. 1, who was first party in the proceeding. Similarly, on behalf of Kitabe Khojwa (opposite party No. 5), Gulabe Khojwa (opposite party No. 6) who were some members of the third party none has appeared. The real contest is between the second party and the remaining third party. The fourth party are the purchasers from the third party. Admittedly, the last owner of the disputed property was Kasidan Khojwa. The first party had claimed possession by virtue of being the seniormost Chela of Mosst. Kashidan Khojwa. Members of the second party, namely, the petitioners in this Court had claimed to have purchased, the disputed property from the sons of Mosst. Mahanga, full sister of the last owner Mosst. Kashidan Khojwa, whereas the members of the contesting third party had claimed possession by virtue of purchase from the Mosst. Kitaban and Mosst. Gulabe chelas of Mosst. Kashidan Khojwa. It may be noticed at this stage that according'' to the fourth party, after the death of Kashidan, the properties devolved on Kitaban (opposite party No. 5) who came in possession of the disputed land, members of the third party. Ali Hassan (opposite party No. 2) Nabi Hassan (opposite party No. 3) and Aziz (opposite party No. 4) being sons of Munra, another full sister of Kashidan Khojwa were associated with the supervision and cultivation of the disputed land. Opposite party Nos. 5 and 6 transferred the disputed lands to opposite party Nos. 2, 3 and 4 who came in possession and subsequently sold 9 bighas to the members of the fourth party, through registered sale deeds and delivered possession. According to the third party Champa Khojwa was never the Chela of Kashidan and she had been set up by some designing people and that her claim was fictitious and baseless. According to the third party the second party had managed to obtain the police report in their favour regarding the possession over the disputed land. According to them, neither they are vendor nor they came in actual possession over the disputed land. The further details about the respective parties is given in the impugned order itself.

Now I turn to consider the submission of the learned Counsel for the petitioners under point No. 1 first. In this connection, learned Counsel has referred to the sale deeds dated 20.2.1968 which was alleged to have been executed in favour of the third party by opposite party Nos. 5 and 6. Before me the counsel for the contesting parties has placed the sale deed itself. In my opinion, after having perused the sale deed, there is no merit in the submission of the learned Counsel for the petitioners under this point, because the sale deed clearly gives in detail all the plot numbers and their area, as mentioned in the impugned order in paragraph 2 and the total area of land of those plots is 12 bighas 5 kathas 7 dhoors which is the entire disputed property.

Now, I turn to consider the submission of the learned Counsel under point No. II and III together. Learned Counsel for the petitioners pointed out that on the 29th May, 1968, opposite party filed an application before the Magistrate mentioning therein that opposite party Nos. 2, 3 and 4 were disturbing her peaceful possession over the disputed land and there was an apprehension of the breach of the peace. The Magistrate sent her application to the local police for investigation who submitted his report on 10.6.1968. In the report inter alia, it is mentioned that:

At the time of my inspection of the spot, I found second party Nos. 1 and 2 present in the bungalow who stated that they were in possession of the entire disputed property on their own behalf as well as on behalf of the other members of the second party. I also found plot Nos. 8, 9 and 10 being ploughed by Sulaiman Gaddi and Fulman Gaddi who stated to be ploughing on behalf of second party. I found Rasool Mian and others in the orchard who stated that they are the purchaser of the fruits from Hamidullah and Sri Abdul Bari of the 2nd party.

On the basis of the said finding of the police in his report learned Counsel submitted that at least on the 19th June, 1968, the members of the second party were found in possession over the disputed land. Therefore, the Magistrate ought to have given due regard to the police report and ought to have declared possession over the disputed property in favour of the petitioners, instead of in favour of their party. According to the said police report the petitioners were in possession over the disputed land beyond 60 days from the preliminary order dated 18.9.1968 passed in the proceeding, i.e. when the proceeding u/s 144 of the Code was converted into one u/s 145 of the Code. Learned Counsel in this connection referred to second proviso to Sub-section (2) of Section 145 of the Code which reads thus:

Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.

On the basis of the said provision, learned Counsel submitted that the possession could have been declared in favour of the third party only if their case was that they were dispossessed within two months prior to 18.9.1968, but in this case they were dispossessed by the petitioners beyond two months. The police report is dated the 10th. June, 1968. ''So, at any rate the police on that date found the members of the second party in possession over the disputed property. In order to find support his contention he has relied on the decision in the case of Shah Md. Yunus v. Bajrang Mahto and Ors. (1), where Raj Kishore Prasad, J. had occasion to deal with Sub-sections (1) and (4) of Section 145 and the second proviso to that section. Learned Counsel for the petitioners has referred to observations made in paragraph Nos. 4, 10 and 26 of the said judgment. In paragraph 4 of the judgment, the facts of the case were given. On the 16th May, 1958, an information was lodged with the police whereupon the police officer visited the spot on the 19th May, 1958, and submitted his report, on which a proceeding u/s 144 of the Code was drawn up on the 14th June, 1958, prohibiting both the parties from going, upon plot 1943, the subject matter of dispute. Subsequently, on the 18th of November, 1958, the said proceeding u/s 144 was converted into one u/s 145 and a proceeding under Sub-section (1) of Section 145, was, accordingly, drawn up. The learned Magistrate, on the 13th December, 1960, passed an order u/s 145(6) declaring the first party Nos. 1, 2, 3 and 5, who were the opposite party, to be in possession. In passing the said order, u/s 145(6) of the Code he said:

...in my opinion the first party is in possession of the land at least since 19.5.1958 when the police visited the spot, if not from earlier. In 145, Cr.P.C, proceeding I am to find out possession on the date of proceeding or within two months prior to that which finds well proved in favour of first party.

In paragraph 10, his Lordship observed that the starting point from which the period of two months, mentioned in the second proviso, will be counted, therefore, was not the date when an order u/s 144 was passed, but the date when the preliminary order under Sub-section (1) of Section 145 was passed. To meet the situation of a party who was is possession immediately before the passing of the preliminary order u/s 145(1), being dispossessed forcibly and wrongfully before that date, this second proviso has been added to Section 145(4) empowering a Magistrate to treat such a person dispossessed as if he had been in possession on the date of the preliminary order. For the purpose of this second proviso a specific period of two months next before the date of the order u/s 145(1) was fixed for invoking the fiction embodied in this proviso. There was no provision either expressly or by necessary implication, empowering a Magistrate to invoke the fiction embodied in this proviso to cover a period extending beyond the said two months. There was neither any provision allowing for extension of the period of the two months laid down in this proviso, whatever the cause of delay may be. No order could be passed in favour of a party, who was dispossessed even though forcibly and wrongly, but more than two months before the date of the order u/s 145(1) of the Code. In paragraph 26 his Lordship held that in that case the Magistrate found the first party to be in possession since at least the 19th May, 1958, because on that date the police went to the spot and found the admitted but of the first party on the disputed plot and further found the first party living in it. The Magistrate, therefore, found in fact the disputed plot to be in actual possession of the first party on the 19th May, 1958, since then, notwithstanding that the order u/s 144 of the Code was till then in force. The penalty for infringing an order u/s 144 was that provided in Section 188, Penal Code, but his Lordship observed that he was not concerned in that case with that. The only concern was with the finding of the learned Magistrate that the first party were in possession at least since the 19th May, 1958, when the police visited the spot. Ultimately, his Lordship affirmed the order of the learned Magistrate. Learned Counsel then referred to a decision in the case of Bhola Kumar and Ors. v. Bhubneshwar Singh and Ors. (2), in order to find support to his contention that the Magistrate ought to have given due regard to the police report and ought to have critically examined the same and ought to have given reasons as to why he was not accepting the police report. He invited my attention to paragraph 7 of the judgment. In that case also the police report was on the record. S.N.P. Singh and M.P. Verma, JJ. (as they then were) observed that in accordance with the language used in Section 145 a Magistrate had to peruse the documents and affidavits filed in the case. The word ''peruse'' of course meant to examine critically. The discussion about the police report is the instant case is to be found in paragraph 45 (iii) of the impugned order whereby rejecting the affidavits and the evidence adduced on behalf of the second party, namely, the petitioners, the Magistrate observed:

Even if it is accepted that they were found ploughing on behalf of the 2nd party during police enquiry such possession cannot be taken as peaceful possession within the meaning of Section 145, Cr.P.C.

Apart from these, there is no other discussion regarding the police report. Therefore, learned Counsel submitted that actually the Magistrate has not applied his mind over the police report and that, according to him, was an important piece of evidence to support the case of the petitioners regarding the possession even beyond two months prior to the date of the initiation of the proceeding u/s 145(1) of the Code i.e. on 18.9.1968. In my opinion, the above observations of their Lordships in the instant case are not applicable, as in the written statement which was filed on behalf of the second party nothing has been said with regard to the said police report. It is only in the written statement which has been filed by the first party it is mentioned, but the case of first party is contrary to the case of the second party. Therefore, the second party has not put the police report in evidence before the Magistrate in the said proceeding. Besides, it is open to the Magistrate in a proceeding u/s 145 of the Code not to rely upon the police report with regard to the possession, as it is well settled that in a proceeding u/s 145 of the Code he has to mainly decide the possession on the basis of the affidavits and the other documents filed by the parties. I have gone through the impugned order and I find that the Magistrate has given good reasons for rejecting the affidavits and the documents filed on behalf of the second party in preference to these filed on behalf of the third party and the fourth party, and while dealing with those documents and affidavits he has critically examined them and has come to the conclusion. Having done so, he referred to the police report and not relied upon the same. In Shah Md. Yunus case relied upon by the petitioners, it may be noticed that in paragraph 26 of the judgment his Lordship has clearly mentioned that the Magistrate found in fact the disputed plot to be in actual possession of the first party and in that case he relied upon the police report. In my opinion, it is upto the Magistrate either to rely or not to rely on a particular evidence. The only requirement is that he must examine the affidavits and other documentary evidence filed by the parties critically. In the instant case. I have already held that the Magistrate has critically examined the affidavits filed by the parties as well as the other documentary evidence filed by them and has come to the conclusion regarding the possession. In that back ground, I do not find any justification for interfering with the impugned order on the sole ground that he has not discussed in detail the reasons as to why he has rejected the said polio report. That part of the order has to be read in the context of the back ground of the earlier discussions made by the Magistrate. Therefore, the contention of the learned Counsel for the petitioners on point Nos. 2 and 3 are unsustainable.

Now, I turn to consider the submissions of the learned Counsel under point No. IV. Under this point learned Counsel invited my attention to the provisions contained under Order XIX, Rule 3 of the Civil Procedure Code, which reads thus:

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted ; provided that the ground thereof are stated.

Learned Counsel then referred to the form of the affidavits which has been adopted by the witnesses who sworn affidavits on behalf of the third party. As an illustration he has shown the affidavit of Bhikham Ram which reads thus:

Bhikham Ram, do solemnly declare that the contents of the affidavit are true to the best of my knowledge.

Similar is the form adopted by the other witnesses who had sworn affidavits on behalf of the third party. Learned Counsel for the petitioners submitted that the correct form was that the affidavits were true to my knowledge. The word "best" used in the form of affidavits have rendered all the affidavits which are under those forms inadmissible in evidence. The Magistrate ought to have completely ignored them. According to him those defects were not curable u/s 537 of the Code. In order to find support to his contention he has relied on the decision in the case of Bhagwan Das Gora v. Srimati Choru Prabha Shankar 1973 B.L.J.R. 206 where G.N. Prasad, J. while dealing with the provisions of Section 145(4) of the Code observed:

that the Code of Criminal Procedure does not contain any provision with respect to affidavits or their requirements. In fact, no statute other than the CPC prescribes the form and manner of swearing affidavits. Therefore, even in respect of affidavits contemplated by Section 145(4) of the Code of Criminal Procedure, the requirements of affidavits laid down in Rule 3 of Order XIX of the CPC must be followed.

The contention of the learned Counsel for the petitioners that these irregularities were not curable u/s 537 is not correct. The view expressed by G.N. Prasad, J. in Bhagwan Das Gora''s case was not approved by a Bench of this Court in Hirdai Yadav v. Kule Yadav and Ors. 1975 B.B.C.J. 369 where it was held that the final orders passed in a proceeding u/s 145 of the Code based on affidavits which were strictly not in terms of Order XIX, Rule 3 of the CPC should not be interfered with by the High Court in exercise of its revisional jurisdiction, since the admissibility of such affidavits did not go to the root of the jurisdiction, and was curable u/s 537 of the Code of Criminal Procedure. Therefore, in my view, these infirmities in the affidavits sworn on behalf of the third party were curable. In the instant case it may also be noticed that the proper time for raising objection regarding these irregularities in the affidavits by the petitioners was when the proceeding was pending before the learned Magistrate. It is well settled that such kind of irregularities and infirmities must be pointed by the petitioners at the earliest opportunity. If that has not been done by the petitioners it would indicate that the petitioners were not prejudiced by these infirmities. Reference may also be made to my unreported decisions in the case of Henna Merandi and Anr. v. Nitai Gorain and Ors. in Criminal Revision No. 1578 of 1974 disposed of on the 9th May, 1977. In that case also similar points Were urged with regard to the affidavit not strictly in the form prescribed under Order XIX, Rule 3 of the Code of Civil Procedure, in a proceeding u/s 145 of the Code of Criminal Procedure.

Learned Counsel for the petitioners, however, has also referred in this regard to a decision in the case of The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, . He invited any attention to paragraph 57 of page 319 of the judgment. The relevant portion of which reads thus:

It is true that in a case of this kind it would be difficult for petitioner to have personal knowledge in regard to an averment of mala fides, but then where such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation, this Court had to observe in The State of Bombay Vs. Purushottam Jog Naik, that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of Order XIX, Rule 3 of the CPC and that where an averment is not based on personal knowledge, the source of information should be clearly disposed.

He also referred to a decision in the case of A.K.K. Nambiar Vs. Union of India (UOI) and Another, . He has drawn my attention to paragraph 11 at page 653 of the judgment the relevant portion of which is to this effect:

The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant''s petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and to make the deponent responsible for allegations. In essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.

In my view, the above observations of their Lordships are not applicable in the instant case. Their Lordships were not dealing with the affidavits as required in a proceeding u/s 145 of the Code. The Bench decision of this Court in 1975 B.B.C.J. 369 (supra) is not directly on the point with regard to the affidavit in a proceeding u/s 145 of the Code. In that case it may be noticed that AIR 1967 (295) and AIR 1970 (652) were referred and distinguished. Learned Counsel for the petitioners then referred to a decision in the case of Sri Gouri Sankar Mukherjee Vs. State of West Bengal and Others, , where M.N, Ray, J. had occasion to deal with the provisions under Order XIX, Rule 3 of the Civil Procedure Code. While dealing with a writ application under Article 226 of the Constitution, learned Counsel referred to paragraph 6 at page 126 of the judgment, the relevant portion of which is to this effect:

The purpose of having an affirmation of a petition or application under the provisions as mentioned hereinbefore is to fix the responsibility about the validity of the statements as made on the maker of the same and affidavits shall be confined to such facts as the deponent would be able of his own knowledge to prove or may prove the source from which he derived such knowledge. If such purpose is not achieved in an affidavit then the very purpose of having the affidavit would be frustrated. Affidavits on all matters other than purely interlocutory one must be restricted to facts which are within the personal knowledge of the deponent. Affidavits should also clearly express, as has been held;

...

In my opinion, as mentioned earlier, none of these cases referred to an affidavit filed by the parties in a proceeding u/s 145 of the Code. Sri Gouri Shankar Mukherjee''s case relates to an affidavit not in a proceeding u/s 145 of the Code. Learned Counsel for the petitioners has not been able to point out any of such cases relating to a proceeding u/s 145 of the Code. After having considered the various decision on the point, in my view, I am bound by the Bench decision of this Court in 1975 B.B.CJ. 369 (supra). Thus, the contentions of the learned Counsel under point No. (iv) is also not acceptable.

Now, I advert to consider the submission of the learned Counsel under point No. (v). In this connection, learned Counsel referred to paragraph 34 of the impugned order wherein the Magistrate has observed that:

While it is true that enquiry in a 145, Cr.P.C, proceeding is concerned with actual possession and not the right to possess, the fact, however, remains that where the evidences are equally balanced title has also to be looked into as a corroborative evidence for coming to a conclusion about the factum of possession.

In my view nothing turns on that observation, as according to me, the Magistrate has correctly laid down the proposition of law, learned Counsel for the petitioners referred to Section 3. of the Muslim Personal Law (Shariat) Application Act, 1937, which reads thus:

Power to make a declaration;

(1)Any person who satisfied the prescribed authority

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872.

(c)xx xx xx xx xx. (2)xx xx xx xx xx.

But, in my view it will be relevant to refer to Section 2 of the said Act which deals with the application of Personal Law to Muslims, which reads thus:

Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding interest succession, special property of females, Including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, Zihar, lien, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakf (other than...)

In the instant case the parties have derived title and possession over the disputed property from Kasidan, who, as pointed out earlier was the original owner, as admitted by the parties. It is also admitted that he is Khojwa. Opposite party Nos. 1, 5 and 6 are also Khojwa. Learned Counsel for the petitioners submitted that all Khojwas are governed by Muslims Law, and, therefore, the Muslim Law should prevail. But, that point is disputed by the parties. In my opinion, it would not be necessary to decide this claim in a proceeding u/s 145 of the Code. Reference may also be made to paragraph 26 of the impugned order wherein the Magistrate observed that without going into much details about the Shariat Act, 1937, as referred to on behalf of the 2nd party, it could simply be said that from the documentary evidence, as discussed above, it was apparent that customary law of succession from Guru Chela was followed at least from the time of Patasi alias Waziran and upto Khashidan and in this view of the case, it would not be reasonable to presume that simply because the last owner was a Muslim, the line of succession according to the Muslim Personal Law could have been followed. I have already quoted the provisions contained under Sections 2 and 3 of the Muslim Personal Law (Shariat) Application Act, 1937. From that h is clear that the provisions would not apply in a case of agricultural land from the evidence or the record, it is not clear that whether the disputed land was ''agricultural'' or ''horticultural''. Besides, this matter will be as I indicated earlier, of no avail in a proceeding u/s 145 of the Code. In such a proceeding, as pointed out by the learned Magistrate himself, he has to decide only the actual possession with the help of affidavits and other evidence on the record. In that view of the matter, there is no justification for interfering with the final order passed by the learned Magistrate.

Now, I turn to consider the submissions made under point No. (vi) by the learned Counsel for the petitioner. Under this point, learned Counsel as mentioned earlier, has urged that the order of the learned Magistrate was vitiated due to commission of various errors on record. Firstly, he has referred to paragraph 16 of the order in order to show that the Magistrate has committed an error when he has stated that Kitaban has not filed Vakalatnama executed by her. Learned Counsel pointed out by reference to the record which had been called for by this that the Vakalatnama executed by opposite party No. 5 (Kitaban) on 14.8.1969 is on the record. It is true that there is one such Vakalatnama on the record bearing thumb impression. But, that error of record to a minor one and that will not vitiate the impugned order. Moreover, the thumb impression is very faint and has not been identified by anyone which ought to have been done. Besides, the learned Magistrate in paragraph 16 of his order has given good reasons for not relying on written statements filed on behalf of opposite party No. 5. Another error of record pointed out by the learned Counsel for the petitioners is by reference to paragraph 25 of the Order wherein the learned Magistrate held that there was no evidence on the record that Kashidan had come in possession by any means other than on the basis of Guru and Chela. Learned Counsel submitted that the court has committed an error as there are affidavits on behalf of the second party of Karimulla, Babibulla, Hamidulla, Abdul Bari, Saleem and Haleem wherein it was stated that Kashidan got the properties by way of gift from Tapeshwar. It is true that they have sworn affidavits, but I have mentioned already that the learned Magistrate has considered all these affidavits critically and have rejected their affidavits, it is not necessary for him to deal with all the matters mentioned in the affidavits. Sitting in a revisional jurisdiction, I would not go into the question with regard to the appreciation of the evidence. Another error pointed out by reference to paragraph 34 of the order wherein the court held that after the first sale to the second party of about 9 bighas of land there was no land available for sale. The court ignored the land included in the Mahadanama (agreement to sale) which was sold later and noticed by the court itself. A reference to paragraph Nos. 15 and 45 (iv) of the order, I am satisfied that the Magistrate has given good reasons for so holding, still there is another error pointed out by the learned Counsel. In this connection he has referred to paragraph 35 of the order where the court held that there was no rebuttal to the assertion of Chapra Khojwa that Mahanga was not the sister of Kashidan. But the affidavits sworn by Ban Mian, Sukat Mian Feku Mian Bhdhan, Karimulla, Habibullah and Abdul Bari was to the effect that Mahanga was full sister of Kasidan. That may be so, but these affidavits have also been duly considered by the learned Magistrate. Another error pointed out by the learned Counsel was by reference to paragraph 45 of the order wherein the court had observed that on 14.6.1968 Karimulla (petitioner No. 1) filed a petition for auction of mangoes by police and, therefore, could not be in possession Learned Counsel pointed out that no such petition was filed as will be apparent from the order sheet which is based on only spurious application of first party on 28.6.1969 when an alleged copy of the petition was filed. We also mentioned by reference to said paragraph 45 of the order that the affidavits sworn by Rasul Mian disclosed that he had claimed to have purchased the mango fruit during 1968 from the members of the 2nd party I have gone through the paragraph 45 of the order carefully as well as the order sheet dated the 28th June, 1969, and the 29th June, 1969. In my view I do not find any material error on the record

Another error according to the learned Counsel for the petitioners was to be found in paragraph 40 of the order Where although the original sale deed executed on the 20th February, 1968, of the disputed property by opposite party Nos. 5 and 6 in favour of appellate party Nos. 2, 3 and 4, was not on the record, the Magistrate presumed that since on the record there is a petition filed by some members of the third party for the return of original sale deed, the original could not be filed. In my view whether the original sale deed was on the record or not, but certainly the certified copy of the original sale deed is on the record. Nothing turns on the point as to whether the original is lost or not and at any rate that cannot be considered as material error vitiating the final order passed by the Magistrate. Lastly, learned Counsel referred to paragraph 34 of the order where the learned Magistrate held that it was not proved that the property tax receipt by the second party related to the lands in dispute. The court ignored the affidavit of Sudhakar Dvivedi, the Mukhia, that the receipts are for suit lands. In my view, the submission of the learned Counsel for the petitioners in this regard has been answered in the impugned order itself. Reference may be made to paragraph 45 (x) of the order where the learned Magistrate has dealt with the affidavit of Sudhakar Dvivedi.

After having carefully considered the submission of the learned Counsel for the petitioners on all the points, I find no merit in the application which is, therefore, dismissed, and the impugned order is affirmed.