- (1.) A. S. Tripathi, J. This revision is filed against the order dated 12-4-1983 passed by the Sub-Divisional Magistrate, Kichha (Radrapur), District Nainital whereby the learned Magistrate has held the possession of the opposite parties within two months of preliminary order.
(2.) I have heard learned Counsel for the parties and have also perused the record of the lower Court. I find that the learned Magistrate has recorded this findings only on the admission of the applicant, Karam Singh, that the apposite party who are atleast in possession for the period between 17-1-1981 to 26-1-1981. The learned Magistrate has also considered, however, the report of Tahsildar and the statement of Chaudhari Ram. It was pointed out by the learned Counsel for the applicant that other evidence on record was not considered by the learned Magistrate. Learned Counsel for the opposity party vehemently argued that the learned Magistrate has considered the entire evidence on record and then came to the conclusion that the opposite party was in possession. The statement of Karam Singh, the first party, the present applicant before this Court was wrongly interpreted by the learned Magistrate for his admission regarding possession of the opposite party within two months. Karam Singh has never stated that the opposite party were in possession during the relevant period of two months before passing of the preliminary order. What Karam Singh has said that he had already evicted the opposite party' and they had taken forcible possession from a particular day within two months of the passing of the preliminary order and as such, he was entitled to regain the possession by evicting the opposity party.
(3.) THIS part of the statement given, Karam Singh was wrongly inter preted by the learned Magistrate that it was the part of the admission of Karam Singh for possession of the opposite party during the relevant period. This is a mistake apparent on the face of record in the findings of the learned Magistrate. Also the learned Magistrate did not apply his mind to consider the report of Patwari, Kanoongo and other statements recorded before him. The learned Magistrate has simply mentioned some statement recorded and reference were produced on record, the report of Gram Pradhao was also not considered. The learned Magistrate simply based his findings a mainly on the basis of aforesaid admission of Karam Singh who has been wrongly interpreted. The findings was based on the admission of Karam Singh which was wrongly interpreted and was not properly considered by the learned Magistrate.;