HOSNAKI Vs. STATE

JUDGEMENT

(1.) For the reasons which we shall give later we allow this application, set aside the order dated 18-9-1953 of the Sub-Divisional Magistrate and direct him to rehear the case. He must receive all the evidence that is produced before him by the parties, decide which party was in possession of the property in dispute on the date on which he had passed the preliminary order and pass an order under Section 145(8) in his favour. He must again attach the property in dispute for the pendency ttf the proceedings before him. The record should be returned to the Sub-Divisional Magistrate as soon as possible. Desai, J. This is an application in revision against an order passed by a Judicial Magistrate, in a proceeding under Section 145, Code of Criminal Procedure.

(2.) The Judicial Magistrate on being satisfied on 23-6-1952 that there existed, a dispute between the applicants and the opposite party regarding certain land & that it gave rise to an apprehension of a breach of peace, started proceedings under Section 145 by issuing the order contemplated by Sub-section 1. During the pendency of the case the opposite-party instituted a suit under Sections 20 and 232, Zamindari Abolition and Land Reforms Act, against the applicants and the suit was decreed on 10-9-1953 in his favour by the revenue Court which declaired that he was entitled to retain possession of the land in dispute. No declaration of the opposite-party's title was given by the revenue Court but it had given a finding on an issue that he had been in possession in 1376 Falsi. Under Section 20 read with Section 232 a. declaration can be given that a person has acquired adhivasi rights on account of his name being entered in the khasra of 1356 Falsi, but the revenue Court actually did not give any declaration that the opposite-party had acquired adhivasi rights. The opposite-party produced a copy of the judgment before the Magistrate, who thereupon stopped taking further evidence and immediately proceeded to declare him to be in possession of the land in dispute and forbid the applicants to interfere with his possession He had already recorded evidence of the applicants in Cull and was in the midst of recording the opposite-party's evidence on 18-9-1953, on which date he passed the order mentioned above, the subject-matter of this revision. It was contended before us that the Magistrate acted illegally in not completing the inquiry into possession and in declaring the opposite-party to be in possession simply on the basis of the decree of the revenue Court and without considering the evidence on the record at all. The applicants are certainly hot hit by the Magistrate's stopping further inquiry into possession by refusing to record any further, evidence because their evidence had been recorded in full; but they are certainly hit by his refusal to consider the evidence recorded by him and by his considering himself bound by the decree of the revenue Court. The applicants Vent up in revision against the Magistrate's order and the Sessions Judge summarily dismissed their application without going into the question whether the Magistrate acted legally in treating the decree, of the revenue Court as conclusive; he did not even consider what was, decided under the decree and what was to be decided by the Magistrate.

(3.) On 20-2-1955 we allowed, the application, set aside the order of the Magistrate & directed him to re-hear the case by receiving evidence and deciding which party was in possession on the relevant date, namely, 23-6-1952. We had then postponed giving our reasons for the order and I now proceed to give them.