- (1.) Parbat Singh has filed this revision application under section 397 Cr. P. C. of 1973 to challenge the order of the Sub-divisional Magistrate, Bhilwara dated 28th January, 1975 passed in a proceeding under section 145 Cr. P.C. declaring Shri Behari Lal to be in possession of the disputed area of the Mica mines.
(2.) Behari Lal the agent of M/s Moolchand Nemichand lodged a report with the police authorities at Mandal that petitioner Parbat Singh was committing a theft in block No. 7 by taking out mica from the area which was a leased area of Seth Moolchand Nemichand. The S.H.O. apprehended a breach of peace and applied to the court of the Sub-divisional Magistrate on 23rd October, 1972 for initiating proceedings under section 145 Cr. P C. and attached the disputed pit where Parbat Singh and Others were working. A preliminary order was passed by the S.D. M. and both the parties were called upon to place their claims before the Court. The affidavits were filed from both sides. The petitioner Behari Lal who is a respondent in the present revision application filed the affidavit of the employee of the Mining department along with two documents Ex. P. 1 and Ex. P. 2 which are said to be the reports of the Mining Engineer and the Surveyor. On behalf of Parbat Singh and Others as many as 28 affidavits were filed. The learned Magistrate after taking into consideration the evidence relied upon by both the sides came to the conclusion that the actual pit which was claimed by Parbat Singh as his leased area was actually within the area which was leased out to M/s Moolchand Nemichand who were working in the name and style as M/s Soni Mining.
(3.) Learned counsel appearing on behalf of Parbat Singh petitioner urged that the affidavits filed by and on behalf of Behari Lal cannot be read in evidence as they suffer from the patent defect in the verification. According to the learned counsel the deponents have not made it clear in the verification as to what portion of the affidavits is said to be true on the basis of his personal knowledge and what portion is true on the basis of his belief. In support of his argument reliance has been placed by the learned counsel on four decided cases of this Court, namely, Bhair Gir v. Hanuman Prasad, 1968 RLW 361 Pritam Singh v. Ranjit Singh, 1971 RLW 330 , Manjit Kaur v. Gurnek Singh, 1974 RLW 372 and Smt. Anchi v. Baluram, 1975 RLW 80 . This Court in these authorities has held that if the affidavits suffer from the defects in the verification, those affidavits cannot be read in evidence. Mr. Dutt appearing on behalf of the opposite side however admitted this position of law and accepted that the affidavits of all the persons who have filed their affidavits on behalf of his client except that of Beharilal suffers from a court defect which renders these affidavits inadmissible evidence. But he Claimed that the affidavit of Beharilal alone is sufficient to establish his Claim and if that affidavit is scrutinised in the light of the documents Ex. P 1 & P 2 then his Claim stands amply proved and, therefore, this Court should not interfere with the finding recorded by the trial court.;