Kamleshwar Nath - (1.) THIS is a revision under Section 435/439 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) arising out of proceedings under Section 145 of that Code in respect of a dilapidated house in village Teonga [P. S. Kotwali district Pratapgarh. The disputed house alongwith its land originally belonged to one Lahuri, cousin brother of revisionist Dhani Ram and opposite party no. 10 Ram Bahore, who had filed an application for proceedings under Section 145 of the old Criminal Procedure Code on 14-9-1969. Lahuri died sometime late in 1967. Dhani Ram and Ram Bahore, being his cousin brothers, claimed to have entered into possession of the property. In consolidation proceedings, this property came into question. During the pendency of those proceedings, Shobh Nath etc. surrounded the house with barbed wire fencing in respect of which the revisionist made an application before the concerned consolidation officer. It was urged in the application under Section 145 CrPC that in order to encroach upon the other abadi land of the revisionist, the opposite parties started extending the barbed wire fencing on 13-9-1969 and on resistance gave a beating to the revisionist. They, therefore, prayed for proceedings under Section 145 CrPC. The Station Officer P. S. Kotwali reported that there Was an apprehension of breach of peace. On 19-9-1969, the Sub Divisional Magistrate concerned passed the preliminary order. The property was attached and given in supurdgi of some person on 30-9-1969.
(2.) DHANI Ram and Ram Bahore filed affidavits of Sukkhoo, Nanku. Ram Kishore, Ram Dayal, Bhaiya Ram, Smt. Bhagwanti and one of themselves, namely, DHANI Ram, The opposite parties filed affidavits of Hari Narain, Rameshwar, Ram Kripal, Shobh Nath and Kripa Sahnker. Certain documents also appear to have been filed on behalf of both the parties. A reference was made to the Civil Court by the Sub Divisional Magistrate which returned a finding in favour of the revisionist on 17-2-1971 and on that basis, the Sub- Divisional Magistrate directed on 25-2-1971 that the property be released in favour of Ram Dhani and Ram Bahore. A revision by the opposite parties having been dismissed, a second revision was filed before the High Court which by order dated 22-2-1973, directed that the question of apprehension of brach of peace be decided and thereafter the case be decided afresh in accordance with law.
(3.) THIS time the Sub Divisional Magistrate on 2-6-1978 found that there was no apprehension of breach of peace and dropped the proceedings. The revisionist filed a revision to the Court of Sessions Judge who held by order dated 2-9-1978 that there was apprehension of breach of peace and directed the Magistrate to decide the case on merits. THIS time the Magistrate did not refer the matter to the Civil Court and held by order date 3-3-1981 that the opposite parties had been in possession and directed the property to be released in their favour. A revision by the: petitioner to the Sessions Judge was dismissed by order dated 4-11-1982 by the lllrd Addl. Sessions Juge giving rise to this revision. The learned counsel for the revisionist has urged that the Magistrate has not applied his mind to the evidence on the 'record and had principally based his decision on inadmissible piece of evidence. The learned counsel for the opposite parties contends that objection to the admissibility of evidence had not been made before the lower Court and the Magistrate had applied his mind to the evidence on the record. In order to appreciate the contending view points, it is necessary to consider the decision of the Magistrate vis-a-vis the material on record at some length.;