- (1.) B. K. Rathi, J. The revisionist have requested to quash the order dated 22-1-1990 passed by IIIrd Additional Sessions Judge, Saharanpur in criminal revision No. 383 of 1989 and to restore the order of the Magistrate dated 31-7-1989 passed by the Magistrate under Section 145 Cr. P. C.
(2.) I have heard Sri M. Islam, learned Counsel for the revisionists, Sri Vikram Nath, learned Counsel for the opposite party Nos. 1 to 3. Opposite party Nos. 4 to 6 have not appeared and therefore could not be heard. The facts of the case are that on 10-11-1978 Sultan, father of opposite party Nos. 4 to 6 executed an agreement to sale the disputed property in favour of the revisionists. However, he executed the sale- deed of the said property on 16-8-1982 in favour of opposite party Nos. 1 to 3. There was dispute and therefore, the proceedings under Section 145, Cr. P. C. started. Parties adduced their evidence and after considering the same learned Sub Divisional Magistrate. Saharanpur by order dated 31- 7-1989 held that the revisionists 1 and 2 were in possession of the disputed property at the relevant time. He has ordered for the release of the property in their favour. Aggrieved by that order the opposite party Nos. 1 to 3 preferred criminal revision No. 383 of 1989 which has been allowed by the im pugned order sought to be quashed and it was ordered that the property be released in favour of opposite party Nos. 1 to 3. Aggrieved by that order the present revision has been preferred under Sections 397,401 Cr. P. C. It is contended by the learned Counsel for the revisionists that after the order was passed by the Magistrate on 31-7-1989 the property was released in favour of the revisionists on 3-8-1989 and was given in their custody from the custody of the supurdgar. That the order of the learned Additional Sessions Judge is without jurisdiction and illegal and he has exceeded his jurisdiction in reversing the finding. It contended that the learned Ad ditional Sessions Judge in the exercise of power of revision under Section 397, Cr. P. C. could not have reversed the finding nor could have ordered for the release of the property in favour of opposite party Nos. 1 to 3. Learned Counsel for the revisionists in support of the arguments has referred to the decision of Smt. Gulaboo v. State of U. P. and others, 1988 U. P. Cr. R. 13. In this case this Court has held that the revisional Court may correct the error in an order passed by the Magistrate under Sections 145 and 146 Cr. P. C. but cannot reassess the evidence and cannot record a different finding.
(3.) I have considered the arguments and law laid down in this case. If in a case where the assessment of the evidence is not required and the only conclusion that can be taken from the evidence is in favour of one party and therefore the revisional Court can definitely record a different finding of possession. This view has been taken in various cases after the decision of the case relied on by the learned Counsel for the revisionists. In the present case admittedly a sale-deed has been executed in favour of opposite party Nos. 1 to 3 by Sultan. There was only an agreement to sale in favour of the revisionists by Sultan. It is not denied that on the basis of the said agreement the revisionists filed a suit for specific perfor mance of contract of sale which have been dismissed and the appeal filed by the revisionists have also been dismissed. If it is so, it cannot be said that the revisionists are in possession of the disputed property and the finding of the learned Magistrate was perverse and against the evidence and was rightly set aside by the learned Addi tional Session Judge.;