- (1.) N. B. Asthana, J. One Prem Chand, who has nothing to do with the disputed land having an area of 0. 01 are of Plot No. 46 situate in village Tilauli P. S. Salempur district Deoria moved an application under Section 145, Cr. P. C. upon which a report has called from the police and on the basis of that report S. D. M. , Salempur was satisfied that an apprehension of breach of peace existed regarding the possession over the disputed land and then passed preliminary order and also an order of attachment under Section 146 (1), Cr. P. C. both the parties filed written statement of their respective claim S. P. espondent No. 4 appeared and stated that he is in posses sion of disputed land and it is his sahan and abadi land.
(2.) CONTENTION of the petitioners was that the disputed land belonged to Jyoti Swarup whose name is recorded in revenue papers and that they purchased this land from Jyoti Swarup by registered sale-deed on!6-10-1987 and are in possession. They have also constructed a wall over it. Prem Chand in order to harass them filed an application under Section 145, Cr. P. C. and obtained a collusive report from the police. According to them, respondent No. 4 is residing at Calcutta and has nothing to do with the disputed land. The petitioner in support of their case examined three witnesses viz. Sita Ram, Jai Shri and one of the petitioners who deposed about their possession and having purchased the disputed land from Jyoti Swarup. Respondent No. 4 also adduced evidence but these witnesses did not turn up for cross-examination by the petitioners. Their statement cannot, therefore, be looked into as evidence. The petitioners also filed the copy of sale-deed executed by Jyoti Swarup and the revenue papers showing him to be the owner of the disputed land.
(3.) THE S. D. M. came to the conclusion that he was not in a position to decide as to which of the parties was in possession of the subject-matter of dispute on the of preliminary order and within two months next before it and, therefore, directed that the disputed land be kept under attachment till the parties get their rights established from competent civil court. THE revision filed against that order was dismissed by IVth Additional Sessions Judge, Deoria. Aggrieved by it the petitioners have come to this Court under Article 226 of the Constitution of India for quashing the orders passed by S. D. M. , Salempur and IVth Additional Session Judge, Deoria. None appeared on behalf of the respondent No. 4 to contest this writ peti tion. From the record it is clear that evidence was adduced by the petitioners in respect of their claim with respect to the disputed land but no admissible evidence was adduced by respondent No. 4. The evidence of the petitioner was so to any ex pane and, therefore, should have been believed by the Magistrate, especially, whey the documentary evidence also indicated the ownership and possession of Jyoti Swarup, their vendor. The S. D. M. without applying his mind to the facts and cir cumstances of the case erroneously held that he was not in a position to determine as to which party was in possession one the relevant date. The IVth Additional Sessions Judge, Deoria while deciding the revision also did not approach the matter from an appropriate angle and erroneously dismissed the revision.;