Ram Saroop and Others vs Basant Ram

J.P. Singh, J.—Petitioners have invoked this Court u/s 104 of the Constitution of Jammu and Kashmir for setting aside Sub-Judge, Samba

July 31, 2007, holding Basant Ram-respondent in possession of land measuring 7 kanal 4 marlas comprised in khasra No. 63, 19 kanal 16 marlas

in khasra No. 42, 10 kanal 3 marlas in Khasra No. 43 and 2 kanal 13 marlas in Khasra No. 61 situated at village Palli Tehsil Samba, while

answering the reference made to him by the Executive Magistrate 1st Class, Tehsildar, Samba, who was unable to record a positive finding as to

which one of the parties was in possession of the land in question in terms of the provisions of Section 145 of the Code of Criminal Procedure on

the basis of the Affidavits, documents and material which the parties had produced before him.

Petitioners Sub-Judge has committed an error of law, apparent on the face of records, in omitting to consider the Affidavits which the parties

had produced before the learned Magistrate, and in such view of the matter, his order of July 31, 2007 was illegal being in violation of the

provisions of Section 146(1)(a) of the Code of Criminal Procedure which mandates the Civil Court to consider while deciding the reference that

evidence too which the parties had produced before the Magistrate before reference of the case to the Civil Court,.

Respondent that the well reasoned order of the Subordinate Judge may not warrant interference by the court in exercise of the power of

superintence when the petitioner, despite having been provided opportunity, had failed to lead any evidence to substantiate his claim to possession.

I have considered the submissions of learned Counsel for the parties and gone through the records.

Perusal of learned Sub-Judge recording his finding that the respondent was in possession of the land in question, he has considered not only the

respondentbi.e., the revenue records, the judgments delivered by the Revenue Forums, as also by Division Bench of this Court. It is only after

analyzing the available material on records, i.e., the revenue records, the orders passed during the currency of the proceedings u/s 145 of the Code

of Criminal Procedure before the Executive Magistrate, the orders passed by the Divisional Commissioner, Joint Commissioner and a Division

Bench of this Court that the learned Sub- Judge has held the respondent to be in possession of the land in question.

Although, the Civil Court, proceeding on a reference made u/s 145 Cr. P. C., is, in law, required, to consider the effect of such evidence which

the parties may have produced before the reference of proceedings to the Civil Court, yet I am of the view that non consideration of the Affidavits

of the parties which they had produced when the Executive Magistrate, Tehsildar, Samba, was in seizin of the case, has not materially effected the

findings recorded by the learned Sub Judge, in that, the Affidavit evidence of the parties cannot have precedence over the oral evidence produced

before the Civil Court where both the parties enjoy liberty to question the veracity of such evidence by cross- examining the witnesses produced

by the parties in this behalf.

That apart, looking to the nature of the evidence which the petitioners which are stereo type and the others not verified as required by law, I do

not find any miscarriage of justice to have happened in the case because of the omission of learned Sub Judge to refer and consider the Affidavit

evidence of the petitioners. This is so because the Affidavit evidence, is of general nature and runs contrary to the evidence which the respondent

has brought on records allowing opportunity to the petitioners to cross-examine his witnesses, produced before the Civil Court, and additionally

because the oral evidence produced by the respondent is stated by the learned Judge to have been supported by the judgments and other material

available on the records.

In view of the above discussion, I do not find any case to have been made out by the petitioners for invoking jurisdiction u/s 104 of the

Constitution of Jammu and Kashmir which is required to be exercised most sparingly and only in appropriate cases to keep the Subordinate courts

within the bound of authority and not for correcting mere errors of fact. Jurisdiction u/s 104 of the Constitution cannot be invoked to correct errors

of fact which only a superior court may do in exercise of its statutory powers as court of Appeal. The High Court cannot, in exercise of jurisdiction

u/s 104 of the Constitution convert itself into a court of Appeal.

Although the findings of the Civil Court given on reference u/s 146 Cr. P.C. are not open to Appeal, Review or Revision yet I am not inclined to

exercise jurisdiction u/s 104 of the Constitution because the final orders passed u/s 146 of the Code of Criminal Procedure remain always subject

to any subsequent decision of a civil court of competent jurisdiction.

For that what has been said above, I do not find any justification to interfere with the order passed by learned Sub Judge, Samba.

This petition, therefore, fails and is, accordingly, dismissed.