DEOKI NANDAN PRASAD, J. - (1.) THIS revision application is directed against the order dated 29.10.1994 passed by Shri R.S. Singh, Executive Magistrate, Ramgarh in Case No. M 232 of 1987 (T.R. No. 27 of 1994) by which he declared possession of the opposite parties/Second Party members.
(2.) A proceeding was started under Section 144 Cr PC on the basis of a police report in respect of 2.47 acres of land of plot No. 119, Khata 0.3, situated in village Govindpur P.S. Gola District Hazaribagh and later on it was converted under Section 145 Cr PC Both parties appeared and filed their respective written statements, witnesses were examined and the documents were also filed. After hearing both sides, the learned Court below passed the order impugned against which this revision application has been filed. It is clear that the petitioner has purchased the land in question by registered sale deed from lawful heirs i.e. Lootma Munda, Tunka Munda, Gama Manda all sons of Nanku Munda and Bhikhmang Munda son of Late Jhanku Munda of the recorded tenant Khela Naya in the year, 1978 and since then the petitioner has been coming in possession. It is also claimed that before purchasing the land, he obtained permission under Section 46 of the Chotanagpur Tenancy Act from the competent authority and the name of the petitioner was also mutated. On the other hand, the case of the opposite parties as claimed that the entry of recorded tenant was not correct and the land in question remained in possession of their ancestors. It is further stated that in the year, 1963 a Bazidava was executed in their favour by the sons of Manku Munda and Jhanku Munda. They started paying rent to the State of Bihar but the same was stopped in the year, 1963 and the demand was cancelled by Anchal Adhikari.
(3.) THE learned counsel appearing on behalf of the petitioner submitted that the learned Court below committed gross error in declaring the possession of opposite parties/ Second party members without appreciating the evidence on record as well as the documents produced have not been properly exhibited nor the evidence of witnesses were discussed, as the learned Magistrate himself admitted that no much significant can be given to the oral witness of both parties. On the other hand, the learned A.P.P. contended before me that the oral evidence adduced before the Court below has not been discussed by the learned Magistrate. It is an admitted position that the learned Magistrate has not discussed or appreciated the oral evidence. In a proceeding under Section 145 Cr PC the magistrate is to be confined as regards possession of either parties in respect of the land in -question. The proceeding under Section 145 Cr PC has to be decided on the examination of witnesses and documents proved in accordance with the evidence Act. The Magistrate is concerned only with the question of actual physical possession over the land in question. He cannot give possession to a party on a finding that he has a better title over the land. Since the oral evidence though adduced in the case has not been discussed, hence without entering into merit of this case, I find that the order passed by the learned Magistrate in the present case has got to be set - aside and the case has to be remanded back for passing order afresh on the material already available on the record.;