SYED ZAFAR AHSAN Vs. BABU JUGESHWAR BUX ROY

JUDGEMENT

(1.) This is an application in revision by the second party in a proceeding under Section 145 against an order of the Magistrate declaring possession in favour of the first party. The proceeding related to lands of the Deogaon Estate of which Babu Gopal Bux Roy, first party No. 2, is proprietor. Petitioners 2 to 7 are persons in whose favour the proprietor had made a grant of a mukarrari lease of eight annas in the estate at a time when neither of the parties were in possession. The proprietor Gopal Bux Roy sued to recover possession on a declaration that the principal defendant of that suit was an impostor. In order to finance this litigation, the mukarrari lease was granted to the members of the second party. The suit failed in the first Court, but on appeal was decreed by this High Court on 19th August 1936, the final order being that Gopal Bux Roy and the present petitioners 2 to 7 should recover joint possession of the entire Deogaon estate, their shares being one-half and one-half. The lower Court in execution issued on 12 March 1937, a writ of delivery of possession which is said to have been duly executed. The writ was in favour of both parties. The petitioners appointed managers one Mr. Rashid and then a Mr. Qayum who apparently did not succeed in collecting any rents or exercising any sort of effective possession in the estate.

(2.) They then on 15 May 1938 appointed a new manager, Mr. Syed Zafar Ahsan who is petitioner 1 and who, it is said, began to make collection, the earliest rent receipt purporting to be issued by him being on a date 27 May 1938. The present proceedings started with a report by the Sub-Inspector of Police of P.S. Chatrapur, dated 7 October 1938, as to disputes regarding collection of rents and grazing fees in his elaka and a similar report dated 24 October 1938, from the Sub-Inspector of Police of P.S. Harihargunj. The Magistrate called for written statements from both parties on 9 November 1938. There was some formal amendment to the proceedings on 21 November 1938, and they were transferred for disposal on 27 January 1939 to Mr. P.C. Mazumdar, the Magistrate, who, eventually disposed of the proceeding and passed the order now under revision.

(3.) The Magistrate has written a long and careful judgment and has dealt with the evidence of possession on both sides. The points taken in revision are that as between parties entitled to joint possession of property, Section 145 is not the appropriate procedure and the Magistrate erred in law in proceeding under that Section. Secondly, its-is said that when possession was delivered by the Civil Court, it was the duty of the Magistrate to uphold that possession. Other grounds arise out of the Magistrate's appreciation of the evidence in the case which, it is said, has been vitiated by certain errors.