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Bishwa Mohan Prasad Singh vs Banshi Tanti & Ors on 22 September, 2011

Patna High Court
Bishwa Mohan Prasad Singh vs Banshi Tanti & Ors on 22 September, 2011
Author: Amaresh Kumar Lal
     IN THE HIGH COURT OF JUDICATURE AT PATNA

                 Criminal Revision No.174 of 2002

  (Against the order dated 29.11.2001 passed by the learned Sub-
 Divisional Magistrate, Majhaul in Case No.1623 (Misc.) of 1981)
==================================================

1. Bishwa Mohan Prasad Singh (now dead), son of late Ramautar
Prasad Singh

(a) Chandani Devi, wife of Late Bishwa Mohan Prasad.

(b) Manoj Kumar Singh.

(c) Saroj Kumar Singh.

(d) Pankaj Kumar Singh

(e) Bhoosan Kumar Singh

(f) Roshan Kumar Singh.

(g) Kamini Sinha, wife of Sri Birendra Kumar Singh,
resident of village-Sukki, Patepur, P.S.-Patepur, District-
Muzaffarpur.

(h) Kumkum Devi, wife of Sri Arvind Singh, resident of
village-Bathnaha, P.S.-Motipur, District- Muzaffarpur.

(i) Paso Devi, wife of Sri Shushil Kumar Singh, resident of
village-Mozamma, P.S.-Paroo, District- Muzaffarpur.

(j) Poonam Sinha, wife of Sri Rajesh Kumar Singh, resident
of village- Phulwaria, P.S.-Paroo, District- Muzaffarpur.

(k) Pinki Kumari, wife of Sri Ajit Kumar Singh, resident of
village-Kafain, P.S.-Hathauri, Distt.-Muzaffarpur.

(l) Rinki Kumari, wife of Sri Shashi Bhushan Singh, resident
of village-Jasauli, P.S.-Motipur, District- Muzaffarpur.
(All sons and daughters of late Bishwa Mohan Prasad Singh,
resident of village-Nayanagar, P.S.-Hasanpur, District-
Sitamarhi)

…. …. Petitioners
Versus

1. Banshi Tanti (since died), son of Bhattu Tanti.

(a) Ram Dulari Devi.

(b) Bikhari Das.

(c) Lal Dhari Das.

(d) Uma Devi.

(e) Kamini Devi.

2. Bhikhari Tanti

3. Lalo Tanti, both sons of Banshi Tanti.

(All residents of village-Purpathar, P.S.-Khodawandpur,
District- Begusarai)
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 2

…. …. 2nd Party-Opposite Parties
==================================================
Appearance:

Advocate for the Petitioners : Mr. Bhupendra Narain Sinha
: Mr. Shailendra Kumar.

Advocate for the Opp. Parties : Mrs. Meera Kumari
: Mr. B.N.Sinha ‘Suman’

CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)

Amaresh Kumar Lal, J. The 1st party-petitioners have preferred this revision

application against the order dated 29.11.2001 passed by

the learned Sub-Divisional Magistrate, Majhaul in Case

No.1623 (Misc.) of 1981 by which the possession over the

land in dispute has been declared under Section 145

Cr.P.C. in favour of the 2nd party-opposite party.

The land in dispute is appertaining to Mauza-

Purpathar in Tauzi No.1233, Khata No.38, Plot Nos.24,

26, 33, 114, 115, 127 and 128 measuring 4 Bighas, 8

Kathas and 8 Dhurs, but on the spot these lands are

meansuring 4 Bighas 11 Kathas and 8 dhoors.

The facts rising to this application are that an

application was filed by the petitioner (original) on

10.09.1981 before the learned Sub-Divisional Magistrate,
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 3

Majhaul to initiate a proceeding under Section 144 Cr.P.C.

On which, a report was called for from the concerned

police station. After receipt of the report, the Sub-

Divisional Magistrate initiated a proceeding under Section

144 Cr.P.C. on 16.09.1981 and subsequently, it was

converted into a proceeding under Section 145 Cr.P.C. on

14.11.1981.

The case of the 1st party petitioner is that the land in

dispute alongwith other lands were sold in auction on rent

suit and purchased by the then landlords Sri Jagarnath

Prasad Singh and Sri Balbhadra Prasad Singh, resident of

village-Nayanagar, vide Case No.93/1910 and Case

No.48/1911. The auction sale was confirmed by the 1 st

court of Munsif, Begusarai on 21.07.1911 and delivery of

possession was affected over the lands in dispute and other

lands on 16.11.1911. Both the auction purchasers

partitioned their lands privately including the lands in

dispute, which, were allotted to the share of Jagarnath

Prasad Singh, who came in possession of the same. After

the death of Jagarnath Pd. Singh, his only son Ramautar

Singh inherited the disputed land and came in possession

thereof. The said Ramautar Singh settled the disputed
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 4

lands by virtue of Hukumnana dated 1st Asin, 1356 F.S. in

favour of Smt. Chandani Devi, wife of the petitioner and

since then she is coming in exclusive possession of the

same. She was paying rent to the ex-landlords and after

vesting of Zamindari her name was mutated in the revenue

records of the Anchal and she is paying rent regularly and

rent receipts in proof of the payment of rent were regularly

issued in her favour.

The case of the 2nd party-opposite party is that the

lands, in question, were recorded in the name of their

ancestors in the cadastral survey and after the death of the

recorded tenants, they have inherited the lands being their

heirs and claimed to be in possession thereof. They have

further claimed that the recorded tenants have executed

several mortgage deeds with respect to the lands in dispute

in favour of the relatives of the petitioner as well as in

favour of the then landlords. The Ex-landlord of the Tauzi

had submitted the name of the recorded tenant in the

Jamabandi return submitted at the time of vesting of

Jamindari and later rent receipts were also issued vide

Mutation Case No.3/15 of 1980-81 (Annexure-B to the

counter affidavit of the opposite party). Thus the opposite
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 5

party claimed their possession over the disputed lands on

the basis of redemption of mortgaged as well as on the

basis of recent mutation order passed in their favour.

Both the parties adduced their oral as well as

documentary evidence in support of their respective claims

before the learned Magistrate. The learned Magistrate has

found and declared the possession of the 2nd party over the

land in dispute vide order dated 22.04.1988 (Annexure-C

to the counter affidavit of the opposite party). The

petitioner challenged the aforesaid order dated 22.04.1988

passed by the learned Executive Magistrate in Cr. Rev.

No.243/88, which was dismissed on 30.03.1994

confirming the order of the learned Magistrate (Annexure-

D to the counter affidavit of the opposite party).

Thereafter, the petitioner challenged both the orders of

learned Executive Magistrate as well as the learned

Additional Sessions Judge-V, Begusarai in

Cr.W.J.C.No.554/94 before the Patna High Court, which

was allowed vide order dated 4.07.1995 and the case was

remanded to the learned Magistrate with direction that he

will afford an opportunity to the parties to prove their

documents and thereafter he will dispose of the proceeding
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 6

in accordance with law (Annexure-E to the counter

affidavit). The opposite party filed S.L.P. in the Hon’ble

Supreme Court vide S.L.P. (Cr.) No.356/96, which was

later on dismissed (Annexure-G to the counter affidavit).

In the meantime, the petitioner filed a petition in Misc.

Case No.1523/81 under Section 145 Cr.P.C. before the

learned S.D.M., Majhaul, Begusarai. The learned

Magistrate passed an order on 23.01.1996 against the

opposite party and declared the possession of the petitioner

(Annexure-H to the counter affidavit). The opposite party

challenged the aforesaid order dated 23.01.1996 vide Cr.

Rev. No.14/97 before the learned Sessions Judge, which

was heard and allowed vide order dated 30.07.1999 by the

learned Additional Sessions Judge, F.T.C.VII, Begusarai

and remanded the case before the learned S.D.M. for

disposal in accordance with law. The learned S.D.M.,

Majhaul passed the order on 29.01.2001 in favour of the

opposite party, which has been challenged in this criminal

revision.

Heard the learned counsel for the petitioner and the

learned counsel for the opposite party.

The learned counsel for the petitioner submits that
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 7

the learned Magistrate has not considered the oral as well

as documentary evidence properly. He has further

submitted that in a proceeding under Section 145 Cr.P.C. a

Magistrate has to peruse the documents and affidavits filed

in the case. The word ‘perused’ of course means to

examine critically.

In support of his contention, he has relied upon a

decision in the case of Bhola Kumar and Ors. Vs.

Bhubneshwar Singh reported in 1968 BLJR 327.

The learned counsel for the 2nd party-opposite party

has submitted that it is apparent from the impugned order

that the learned Magistrate has considered the evidence

adduced on behalf of both the parties. The documents have

also been exhibited and marked as Exhibits on behalf of

both the parties. The 1st party-petitioners have produced

nine witnesses and the 2nd party has adduced seven

witnesses. The learned Magistrate has considered the oral

as well as documentary evidence adduced on behalf of

both the parties and has come to the conclusion that the

second party opposite party are in possession of the land in

dispute and their possession has been declared and it has

also been made clear that the order will remain in force
Patna High Court CR. REV. No.174 of 2002 dt.22-09-2011 8

until any order is passed by any competent court.

After hearing the learned counsel for both the

parties and on perusal of the record, it appears that the

contention of the learned counsel for the 2nd party opposite

party is correct. The learned Magistrate has considered the

oral as well as documentary evidence adduced on behalf of

both the parties and has come to the conclusion that the

second party opposite party is in possession of the land in

dispute.

Considering the facts and circumstances stated

above, I do not find any ground to interfere with the

impugned order. This petition is dismissed.

( Amaresh Kumar Lal, J.)
Patna High Court, Patna
Dated the 22nd September, 2011
NAFR/V.K. Pandey

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