Shiv Charan Mahto vs Ramashray Mahto and Others

S.N. Pathak, J.—This revision is directed against the order passed by the Executive Magistrate, Barh in a proceeding u/s 145 of the Code of Criminal Procedure in Misc. Case No. 1886M of 1992.

The first party of the proceeding is the revisionist before this Court and the order was passed in favour of second party of the proceeding who are opposite parties before this Court.

The admitted case of the parties is that one Lutani Devi was the recorded tenant of the land in dispute between the parties. The members of the first party were claiming the disputed plots on the basis of being descendants of Lutani Devi; whereas the members of the second party were claiming the disputed plot on the basis of deed of will from Lutani Devi in favour of one Darogi Mahto, the grand father of Ramashray Mahto. Susbequently, Darogi Mahto executed a deed of gift in favour of Ramashray Mahto. Members of the second party were descendants of Ramashray Mahto.

It was submitted before me by the Petitioner''s lawyer that several witnesses were examined by the revisionists first party and one or two witnesses only were examined by the 2nd party (O.P. here). The learned Magistrate relied on certain unexhibited documents filed by the O.P. 2nd party and his documents were copies of Register-II, certain rent receipts and unregistered deed of will and gift, whereas several documents were exhibited on behalf of revisionist first party. So the impugned order is vitiated by misapplication of procedure.

On persual of the impugned order in all its details, of course, it transpires that the members of the second party, perhaps, examined only one witness and of course certain documents were produced; but none of these documents was exhibited and only unregistered deed of gift and will were also produced but none of the same was also exhibited. The members of the first party had produced rent receipts etc. which were all exhibited though, of course, in photo copies. Whatever may be the position, it was quite obvious that even though the documents produced by the parties were not to be relied upon, there were a number of witnesses examined on behalf of first party revisionist, the evidence of whom could not be easily brushed aside, when the documents were accepted to be admitted into evidence which were produced on behalf of first party revisionist, those documents should also have been given due significance, even though the same were in photo copies and not the original ones.

The overall picture of the impugned order, therefore, is that it is apparently vitiated by mis-application of provisions of the Code of Criminal Procedure for recording of evidence as laid down u/s 145 of the Code of Criminal Procedure. So I am of the opinion that the impugned order cannot be allowed to stand.

In the result, this revision is allowed and the impugned order is set aside.