Decided on August 07,1973

Budhuram Ghana And Ors. Appellant
Mandari Bewa Respondents


G.K. Misra, J. - (1.) ONE Mohan had four sons Baikuntha (dead), Budhuram (second party No. 1), Khetramohan (dead) and Karunakar (second party No. 2). Pratap (second party No. 3) is the son of Baikuntha. Mandari Bewa (first party) is the widow of Khetramohan. Kailash (second party No. 4) is the son of Karunakar. The member of the first party filed an application under Section 145, Code of Criminal Procedure on 30th of May, 1970 alleging that in a family partition during the life time of her husband the disputed land was allotted to her husband 's share. The disputed land was described by her as one acre of land. In that petition she alleged that on 28 -5 -1970 members of the second party sowed paddy and she was unable to keep the disputed land in her possession. The learned Magistrate called for a report from the Officer -in -charge, Raruan P.S. who submitted it on 22nd of January, 1971. The preliminary order was passed on 27 -1 -1971. The disputed land as appears from the preliminary order is one acre twelve decimals in plot No. 127 in Khunti No. 80 of village Haladia. The case of the second party members is that in 1930 -31 the four branches were separately recorded in respect of properties allowed to them in partition. Some of the properties remained joint. The properties which stand joint are two tanks, one mango tope, one granary and the disputed properties. The record -of -rights (Ext. A/2) shows that the disputed land stands recorded in the name of Baikunthanath Ghana and others. Their is case that for some years after the death of Khetramohan, Mandari was allowed to enjoy the usufruct on Thika basis and expressing her inability to pay the repairing charges she gave up possession of the disputed land to the members of the second party about 15 to 17 years back and since then second party members are in cultivating possession over the disputed land and are paying rent as would appear from Ex. B -series. The first party filed a criminal case and being unsuccessful has filed this application. After going through the written statements, affidavits and documents the learned Magistrate declared that the first party member was in possession on the date of the preliminary order. The second party members have filed the criminal revision against the impugned order dated 22 -4 -1972.
(2.) MR . B. Ray for the Petitioners raised the following contentions: (i) The final order passed in the proceeding under Section 145, Code of Criminal Procedure is in respect of one acre twelve decimals while the first party member claimed only one acre in her application under Section 145 Code of Criminal Procedure. (ii) On the admitted case of the first party that she was dispossessed on 30th of May, 1970 and the preliminary order was passed on 27 -1 -1971, possession in her favour could not have been declared under Section 145(4), second proviso, of the Code of Criminal Procedure. (iii) Partition of the joint family property having not been substantiated a proceeding under Section 145, Code of Criminal Procedure is incompetent. The learned Magistrate has considered the affidavits and the documentary evidence. After having carefully gone through them I am of opinion that the assessment of evidence is not unsatisfactory. No case is made out for re -assessment of evidence in a criminal revision as is done in a criminal appeal. I do not accordingly interfere with the finding of the learned Magistrate that Mandari was in possession of the disputed property till 30 -5 -1970 when she was dispossessed.
(3.) THE contention of Mr. Ray that dispossession being on 30 -5 -1970 and the preliminary order having been passed on 27 -1 -1971, the order declaring possession in favour of the first party is contrary to Section 145(4), second proviso, requires closer examination.;

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