Lachmi Narain Agrawala vs Mukhram Marwari

Coutts, J.—This is an application in revision against an order passed in favour of the first party in a proceeding u/s 145 of the Criminal Procedure Code. The dispute relates to some 100 bighas of land situated in Mouza Barmeshia. The first, party obtained a lease from Thakur Ran Bahadur Singh of some 700 bighas of coal land covering the whole of the northern portion of the Mouza. Subsequently, the second party obtained a lease of 100 bighas of land which they allege was excluded from the lease of 700 bighas which had been granted to the first party. The dispute is with regard to this 100 bighas the first party claiming that it is within their 700 bighas and that they have been in possession, the second party claiming that it is not within the 7C0 bighas and that the first party have not been in possession.

The learned Deputy Magistrate who heard the matter decided in favour of the first party and the second party made this application in revision.

The first point urged is, that the learned Deputy Magistrate has approached the case from a wrong point of view inasmuch as he has considered the document of title of the first party and has not considered the document of title of the second party. What, in fact, the learned Deputy Magistrate has done is that he has considered the lease of the first party, on a consideration of the terms of the lease and the boundaries, he has come to the conclusion that the disputed land is within the area leased to the first party, and on a consideration of the oral evidence he has found that the first party is in possession. He has then said that even if the disputed land is within the area which was leased to the second party it would not affect the matter. In taking this view of the case not only has he not approached the case from a wrong standpoint, but, in my opinion, he has approached it from the only proper standpoint, for it is perfectly clear that if the first party shows that the land in dispute is within the boundaries of the land leased to him and if on the oral evidence he establishes possession, it is immaterial that the land was subsequently leased to the second party. Moreover, the learned Magistrate was bound to decide on a consideration of the lease of the first party itself whether the disputed land was within the land leased to the first party, he was not entitled to go outside that document in order to interpret its terms.

The next point which is urged is that the Deputy Magistrate had no jurisdiction to hold the local inspection, which was held by him, before he began to hear the case. What happened was that before he began to take evidence the Deputy Magistrate went to the place in order to see the exact land in dispute and the features of the disputed property. He restricted his inquiry very closely to these points and it does not appear that he directed his inquiry to any matter which could be proved by oral evidence. No evidence was taken at the local enquiry and all that was done was to inspect the locality, make a note of what the disputed area was and prepare a plan. Everything was placed on the record. I am unable to see how in holding a local inspection of this sort the Deputy Magistrate in any way acted-outside the jurisdiction vested in him by law.

We have been referred to the case of Babbon Shaikh v. Empetor 5 Ind. Cas. 365 : 37 340 : 14 CWN 422 : 11 CLJ 335 : 11 CriLJ 121 for authority as to what a Magistrate may do by way of local inspection. That case, however, has no bearing on the present case, because in that case the Magistrate did not merely view the place of occurrence for the purpose of following or understanding the evidence, but he imported into his judgment matters of opinion and inference based on circumstances not on the record and did not place the results of his local inspection on the record. That case and the many other cases which are to the same effect have no bearing on the case now before us.

The last point which has been urged is in regard to a certain plan (Exhibit 14) which has been used by the learned Deputy Magistrate in coming to his conclusion, and which, it is contended, he was not entitled to use. The reason why it is said that he is not entitled to use this document is that it purports to have been sent with a covering letter, which is Exhibit 15, to the first party in 1918. It is a plan of the land which was leased to the first party and it is contended that the covering letter was written on paper which from the water-mark on it appears not to have been made before the year 1920. If this is so, it is suggested that the letter and the plan are both forgeries and it is clear that, if they were, this would certainly materially affect the result of the case. During the hearing it was suggested by the second party that the letter was a forgery and a petition asking the Magistrate to send the letter to the Controller of Stamps and Stationery was filed. The Magistrate declined to pass such an order and said he would deal with the matter later. He did so in his judgment and what he says is that he declined to hold an enquiry into the matter because the signature on the letter had been proved to be the signature of Thakur Ram Bahadur Singh by his agent. He was entitled to deal with the matter in this way and, in my opinion, he dealt with it in the right way. If the second party had desired to pursue the matter, they should have summoned some one from the Department of Stamps and Stationery. They, however, did not choose to take this course and the learned Magistrate, as I have said, not only acted within his jurisdiction in not taking up the matter himself but I think he acted properly in not doing so.

In the result, then, I see no reason to interfere with the order of the learned Magistrate and I would dismiss this application.

Das, J.

I agree.