RAM KISHAN AND OTHERS Vs. RAMESHWAR DAYAL AND OTHERS

JUDGEMENT

(1.) THE learned Single Judge has referred the following question for decision by a Bench:

(2.) THE facts of the case are that on 4 -8 -1966 the first Respondent, Rameshwar Dayal Tripathi filed an application Under Section 145 Code of Criminal Procedure against Ram Kishan and four others (who are Petitioners now) alleging that fie was the owner in possession of a building and its sahan in mohalla Parwaran Jhansi, bearing house Nos. 50, 51, 52 and 55/1; while the opposite parties (Ram Kishan and four others) were the owners of the adjoining house. The allegation of Rameshwar Dayal complainant was that Ram Kishan and others started construction of walls towards the northern portion of his land and thereby interfered with the complainant's possession thereon. He further said that on his protest, the opposite parties rushed to beat him but he was rescued by the witnesses. He thus alleged that there was an apprehension of the breach of peace with regard to the land in question. Rameshwar Dayal filed a F.I.R. at the P.S. on 2 -8 -1966 and followed it up by a complaint in the court of the City Magistrate, Jhansi. Rameshwar Dayal however conceded that beyond his land lay the joint land of the parties, immediately towards the north. On being asked by the City Magistrate, the Kotwali police submitted a report saying that there was an apprehension of breach of peace in respect of the disputed land. On, 16 -8 -1966 the Magistrate passed a preliminary order and directed the attachment of the land.

(3.) AGGRIEVED by the above order of the City Magistrate, Ram Kishan and others filed Cr. Revision No. 28 of 1966 in the court of the S.J. Jhansi on 3 -12 -1966 Under Section 435 Code of Criminal Procedure and made a request to the Judge to make a local inspection. This request was accepted by the learned S.J. who on local inspection found the existence of a closed door in the dividing wall between the houses of the parties. Major portion of that door was found closed up but there was an opening measuring 2 ft. à - 9 inch à - 7 inch. According to the revisionists (Ram Kishan and others) the partial opening in the closed up door had been created by Rameshwar Dayal during the pendency of the proceedings Under Section 145 Code of Criminal Procedure in order to create evidence in his favour.