MAHESH THAKUR AND SIX ORS. Vs. LAKSHMAN PD. THAKUR AND ANR.

JUDGEMENT

(1.) Both these cases have been heard together, because in both of them the same Point of law has been canvassed before us. This judgment will therefore, govern them both. Criminal Revision No. 1812 of 1969 came up for hearing before the Hon'ble Mr. Justice Kanhaiyaji, and his Lordship referred the case to a Division Bench. Similarly, Criminal Revision No. 118 of 1970 was placed for hearing before the Hon'ble Mr. Justice C.P. Sinha and he referred the case to a Division Bench. The learned Judges found that there was conflict of opinion concerning the disputed point amongst various High Courts and so they thought it desirable that a Division Bench of this Court should decide the matter. The main question in both these cases is, whether the affidavits which are filed in a proceeding under Sec. 145 of the Code of Criminal Procedure should be sworn before the Magistrate who is in seisin of the proceeding, or before any other Magistrate and then put in before the Magistrate who had to decide the proceeding. I would, therefore, briefly refer to the facts of the two cases and then come to the discussion of the legal point.

(2.) The Magistrate has declared the possession of the members of the second party and so members of the first party are petitioners before this Court. The area in dispute is 3.90 acres (4 bighas and 6 dhurs), comprised within plot no. 12, khata no. 851, tauzi no. 6877, situate in village Paroo in the district of Muzaffarpur. There are seven persons constituting the members of the first party. Petitioners 1, 2, 3 and 5 claims 2 bighas 5 kathas and 6 dhurs, petitioner no. 4 claims one bigha and petitioners 6 and 7 claim 15 kathas. Their case, in short, is that these lands were recorded as bhaoli in the name of Mahanth Chhakan Puri, and the landlords were Bishundeo Narain Singh and Lakshmi Narain Singh. Their estate was in thicca with Karanwari Kothi. In 1896, Chhakan Puri surrendered plot no. 12 to Karanwari Kothi. In 1899, the Kothi settled 15 kathas with Prayag Lal Choudhary (ancestors of petitioners 6 and 7). In 1908 the landlord settled 2 bighas 5 kathas 6 dhurs with the ancestors of petitioners 1, 2, 3 and 5. Petitioner no. 4 claims one bigha of land by purcha from the heirs of Lachhuman Kurmi.

(3.) The case of the members of the second party - -opposite party is that the disputed lands belonged to Chhakan Puri, who never surrendered these lands to the landlord; Chhakan Puri died and his Chelas, Gena Puri and Sheok Puri, succeeded him. On 18th October, 1951, Gena Puri sold the land to the members of the second party under a registered sale deed. Thereafter the rent was converted into naqdi by Bishundeo Narain Singh, and the possession of the members of the second party continued.