Full Judgment
S.N. Pathak, J.
1. The aforesaid Criminal Revision and the Criminal Misc. cases have been heard analogous and this common judgment shall dispose of three aforesaid cases.
2. Cr. Rev. No. 145/99 has been filed against the order dated 15-10-1998 passed by the Executive Magistrate Muzaffarpur (West) in Case No. M 261/79, Trial No. 68/97 under Section 145 Cr.P.C. 1st party of the proceeding in the Court below is revisionist before this Court and the members of the 2nd party of the Lower Court proceeding are opposite parties. The disputed plot was 2905 under Khata No. 195, area 90 decimals, old khata No. 36, area 98 decimals. The learned Executive Magistrate declared the lands in possession of the 2nd party-opposite party and aggrieved by that order, the revisionist came up before this Court.
3. The case of the revisionist in the Court below was that the disputed plot was recorded in the name of the Chaturi Mahot. In Executive Case No. 218/1900, suit plot was auctioned and sold perhaps pursuant to the decree obtained by the ex-landlord. One Surjan Devi purchased the lands in auction sale. Subsequently vide registered deed of surrender dated 20-8-1903, Surjan Devi gave up her possession in favour of ex-landlord. Subsequently, ex-landlord by settlement deed (Patta dawami dated 26-7-1922 settled the disputed land and other lands in favour of one Ram Bahadur Sah. Parikshan Pd. Sahu, who is own brother of Ram Bahadur Sah, came in possession of the suit land aiongwith other lands on the death of Ram Bahadur Sah. Return was filed in his name. Subsequently, he started holding Hat (Mart) on some portion of the disputed lands. There was proceeding under Section 4(H) of the Land Reforms Act and the State Government relinquished its claim in Claims Case No. 2/62 and released the lands in favour of Parikshan Pd. Sahu, Shivani Devi, his daughter replaced him in the proceeding under Section 145 Cr.P.C. Parikshan Pd. Sahu had got his i;ame mutated over this land. However, during the consolidation
proceeding, as ex-parte order was obtained by 2nd party of the proceeding in their favour and against the order of the Consolidation Officer, there was an appeal before the Deputy Director, Consolidation. But the 1st party revisionist failed and then her predecessor appeared before the revisional authority. Having failed there, writ was filed on the High Court. The High Court set aside the order of the revisional Court and remanded the matter to the appellate authority to decide the appeal afresh. However, the opposite party obtained illegal order of mutation in their favour and the appeal before the DCLR filed by the revisionist failed. Thereafter, 2nd party opposite party started interfering with the peaceful possession of the revisionist and his ancestor which led to the initiation of the proceeding under Section 145 Cr.P.C.
4. The case of the 2nd party-opposite party was that they are descendants of Chaturi Mahto and some other members of 2nd party-opposite party are purchasers from them, 2nd party-opposite party denied the alleged auction sale and purchase of the suit property by Surjan Devi. Their case was, rather, that neither there was surrender by Surjan Devi as alleged for there was only settlement in favour of Ram Bahadur San nor Prakishan Pd. Sahu nor his daughter ever came in possession over the land. The documents in their favour were obtained in collusion with ex-landlord. Orders passed in consolidation proceeding and the same passed by the Executive Magistrate are all valid and legal.
5. I find that the learned Executive Magistrate decided the question of possession on the basis of the oral and documentary evidence. The Executive Magistrate concerned discussed oral evidence of each and every witness adduced on behalf of the parties and came to a definite conclusion , that the evidence of revisionist was not reliable and the same of 2nd party-opposite party was reliable and convincing. So far documentary evidence was concerned, revisionist had filed several documents including document of auction purchase, registered settlement patta and the rent receipt, order sheet etc. The Executive Magistrate held that certified copies of the registered patta etc. were not admissible because neither their custody was proved nor their originals were produced before the Court. Of course, Executive Magistrate gave due consideration to sale certificate relating to auction sale which was public document. Executive Magistrate held that the order relating to delivery of possession was not produced. So the documents in question relating to auction sale were not sufficient to prove that Surjan Devi came in physical possession of the auction purchased land. It is also not understandable as to why the revisionist 1st party had failed to file the original settlement deed or original surrender name nor there was any explanation for not filing the same. The certified copies were not brought on record by proving the same and, therefore, Executive Magistrate rightly dismissed the documents as unreliable. So far the documents of 2nd party revisionist are concerned they referred to admitted facts, which were that the Consolidation Officers gave their verdict in their favour. The order of the Circle Officer and the same of the DCLR rejecting the prayer of the 1 st party revisionist fro setting aside the order of the Circle Officer, passing the order of mutation in favour of opposite party were also admitted facts. However, the learned Executive Magistrate decided the factum of physical possession in favour of 2nd party on the basis of the oral evidence.
6. In proceeding under Section 145 Cr.P.C. title of the parties to the land in dispute or right to hold the same is normally not to be decided who is the actual physical possession is only relevant for decision in a proceeding under Section 145 Cr.P.C. which is intended mainly and primarily for preventing breach of peace. In such circumstances, questions, whether Surjan Devi surrendered the land in favour of the ex-landlord or his settlees acquired right, title and interest over the disputed land were all irrelevant for deciding the proceeding who was in actual physical possession was the only fact to be decided. I find that the decision of the learned
Executive Magistrate neither suffers from any illegality nor material irregularity in order to invite interference by this Court. In this connection, I am also to point out that the proceeding under Section 4(H) of the Land Reforms Act is initiated against any illegal transfer and for recovering certain lands from his illegal possession after vesting of Estates. So simply because, this proceeding was decided in favour of the revisionist's ancestor, that cannot led to inevitable conclusion that the revisionist's ancestor was in physical possession of the land. Perhaps this proceeding was, initiated because Return was filed in his name. Moreover, the recent mutation in favour of 2nd party-opposite party and the earlier order passed in his favour in the consolidation proceeding also negated the inference regarding actual physical possession in favour of the revisionist 1st party as a result of the decision under Section 4(H) of the Act.
7. In all circumstances, therefore, I am of the opinion that the finding arrived at by the learned Executive Magistrate regarding actual physical possession were not vitiated by any illegality or material irregularity on the basis of the evidence on record. So I am of the opinion that there is no good case before this Court for interference with the impugned order. This revision is accordingly, dismissed.
8. Cr. Misc. 29598/2001 has been filed seeking annulment of the order dated 8th June, 2001 passed by Sri T.P. Singh, Sessions Judge, Muzaffarpur in Cr. Rev. No. 244/98. This revision was filed against the order dated 15-10-1998, which has been just now held to be valid, land revision filed in this Court has already been dismissed. Revision before the Sessions Court was filed by some other persons. Since the result of this case is same as was the result of the revision before the Sessions Court, I think there is no necessity to allow this Misc. case before this Court because result of both revisions is the same. Hence, this Cr. Misc. No. 29598/2001 is dismissed.
9. Cr. Misc. No. 17810/2000 has been filed for quashing the order dated 29-5-2000 passed by the Sub-Divisional Magistrate (West) Muzaffarpur. By the aforesaid order the SDM directed the CO concerned to collect toll of the market (Hat) on the disputed land which was subject-matter of the proceeding under Section 145 Cr.P.C.
In the proceeding under Section 145 Cr. P.C. reference to which has been made
in Cr. Rev. No. 145/99 filed before this Court, the SDM declared possession of the
applicant of this Misc. case. Subsequently, against the impugned order dated 15-
10-1998, revision was filed before this Court in which order of status quo was passed.
In pursuance of that order SDM put the disputed lands in possession of the Circle
Officer and directed him to collect tolls, However, this order has been challenged in
this Misc. case. Now that revision filed against the order dated 15-10-1998 has been
dismissed. I think the order of the Magistrate declaring the possession of the applicant
of this Misc. case shall stand vindicated. So, the impugned order dated 29-5-2000 is
set aside. The applicant Ram Briksha Singh of this Misc. case substituted by his
son, Manoj who was 2nd party in the proceeding under Section 145 Cr. P.C. shall be
put back in possession of the disputed land. This Cr. Misc. No. 17810/2000 is
accordingly, allowed.