Mt. Mahodra Koer and another vs Khuban Panday and others

Ross, J.—This is an application in revision against an order passed by the Deputy Magistrate of Chapra, attaching two orchards u/s 146 of the Criminal Procedure Code.

The dispute is between a widow and her mortgagee on the one side and the next heirs of the last male owner on the other. The first party, the widow and her mortgagee, claimed to have been in possession since the death of the last male owner. The Magistrate has definitely disbelieved the evidence of possession offered by the second party. With regard to the evidence of possession on behalf of the first party, he has accepted the evidence of Babu Shew Protap Narain who deposed that the widow Mahodra Koer was in actual possession of the disputed orchards and that they were never in possession of the second party. As the widow herself, however, in her written statement had said that she had ceased to be in possession and that she had mortgaged the property to Mathura Lal, the learned Deputy Magistrate thought that he could not hold that she was in possession, and as he was of opinion that the mortgage was a collusive transaction inasmuch as the title of the second party as heirs of the last male owner had been declared in another litigation, he thought that he could not accept the evidence of possession offered on behalf of Mathura Lal.

Now in coming to this conclusion the learned Deputy Magistrate was in error. There is no dispute between the widow and her mortgagee. The evidence of Babu Shew Protap Narain does not necessarily mean that the widow is actually in physical possession of the land. The possession which she had may be exercised through her mortgagee, and the question whether the mortgage is a collusive transaction or not is not one which has any bearing on the question of possession under the mortgage when the widow herself does not dispute it.

In view of the findings in this case, it was, in my opinion, not open to the Magistrate to attach the property, as there is no real doubt on his finding as to possession. I therefore set aside the order attaching the property u/s 146 of the Cr. P Code.