Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 234 of 2001 1. Lohra Oraon, s/o Charwa Oraon 2. Mangara Oraon, S/o Phaguwa Oraon 3. Punai Oraon, S/o Late Sanai Oraon 4. Ghure Oraon, S/o Chamra Oraon 5. Bandhan Oraon @ Budhu Oraon, S/o Luiya Oraon 6. Chautha Oraon, S/o Luiya Oraon All Resident of village Dumardih Garhtoli P.S. Gumla, Distt. Gumla .… Petitioners Versus Chunia Bhagat, S/o late Soma Bhagat and so-called Ghardamad of Late Chhota Bhikham Mahto Resident of village Dumardih Garhtoli. P.S. and P.O. Gumla, Distt. Gumla. .... Opposite Party ---------- CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA For the Petitioners : Mr. L.K. Lal, Adv. For the Opposite Party : Mr. A.K.Chaturvedi ---------- 07/Dated:
03. 02/2015 This criminal revision application has been directed against the order dated 1.5.2001, passed by Learned 1st Additional District Judge, Gumla, in Criminal Revision No.10/1995, arising out of the order of the Executive Magistrate, Gumla passed in M.Case No.849/85, whereby and whereunder the order of the Executive Magistrate, Gumla was set aside and possession of opposite party was confirmed.
2. Learned counsel for the petitioners has submitted that the court below has committed an error in law by deciding the right, title, interest and possession of the party over the disputed land pertaining to Khata No.195, 143, 56, 20, 19 and 100; that 2 the court below has not considered the oral evidence of the parties. It is argued that opposite party has failed to produce any documentary evidence i.e. he is Gharjamai of late Chhota Bhikham Mahto or he was ever in possession of the said land and the finding of the court below regarding the title possession of the said land is perverse and not supported by any document on record. On the above grounds learned counsel has urged that the impugned order is fit to be set aside.
3. Learned counsel appearing on behalf of the opposite party has submitted that the grand father-in-law of the opposite party, Chunia Bhagat had filed a Partition Suit bearing no. 102/1924, which was decided against the grand father-in-law of the opposite party, whereafter an appeal was preferred bearing Title Appeal No.164/1925 wherein the Addl. Sub-ordinate Judge, Ranchi, granted the decree in favour of the grand father-in-law of the opposite party (Annexure-B). It is submitted that during the pendency of the proceeding under Section 145 Cr.P.C. the main papers of the 1st party were lying before the D.C.L.R in Mutation Appeal No.30/86-87 and 45/86-87 and after the decision in the said Mutation Appeal, the papers were received from court of L.R.D.C. and have been filed in the court. It has been argued that the court of Additional District Judge has taken note of the fact that the Executive Magistrate has only mentioned about the documents but did not consider and appreciate the documentary evidence. That 13 documents were filed by the opposite party which are Exhibits 1 to 13 and they pertain to Zamindari and correction slip of Khata No.193 and 195 of the year 1957-58, Revenue Revision no.121/63-64 vide order dated 13.5.1963, decided in favour of the appellant, correction slip of Khata No.20 and 100 made in favour of the appellant, certified copy of Revenue Revision No.1815/60-61, Mutation of rent fixed by the Circle Officer and order passed in favour of the appellant on 24.4.1965 in Mutation Case No.3R2765-66, Revenue Revision No.386/60-61 dated 3.12.1961, certified copy of correction slip of Khata No.19 and 56, Mutation Appeal No.30/86-87 and 45/86-87 which was decided in favour of the appellant after filing of this revision case; that Exbt.11 is the certified copy of the deposition of Chunia Bhagat in T.S. No.138/1953 wherein he deposed that 3 he is the Gharjamai of Chhota Bhikhan and Exbt.12 was the order passed by the Munsif in T.S. No.138/1953 wherein the learned Munsif had held that the opposite party Chunia Bhagat is the Gharjamai of Chhota Bhikam.
4. Heard. From perusal of the impugned order, it transpires that the Additional District Judge has considered the fact that the documents of the opposite party were not considered by the Executive Magistrate. Additional Sessions Judge has considered the documents of the opposite party whereby the competent authority and court had adjudicated that the lands of Khata No.195, 143, 56, 20, 19 and 100 were held by the opposite party.
5. The contention on behalf of the petitioner that the opposite party has failed to produce any document that he is a 'Gharjamai' is rather misplaced because Ext.12 is the order passed in T.S.No.138/1953 whereby the court of Munsif had declared that opposite party is the Gharjamai. This order has not been challenged by the petitioner accordingly the said order has attained finality and is binding the parties. The documents containing the order of the Revenue Court, Mutation Appeal and the correction slips and Title Appeal No.164/1925 show that the dispute with respect to the land was adjudicated and decided by competent authority and court. In such circumstances, it was the duty of a Magistrate to protect the right of successful party. It is well settled that the provision of Section 145 Cr.P.C. can not be taken recourse to by an unsuccessful party to circumvent or neutralise the order of a competent court.
6. Admittedly documents of the opposite party were not considered by the Magistrate. The revisional court of Additional Sessions Judge has taken notice of this fact and after considering the oral and documentary evidence the Additional Sessions Judge found that opposite party is in possession of the land. However, the court below has given a further finding regarding the right and title of the opposite party which is not justified as such finding is beyond jurisdiction of the court exercising a revisional jurisdiction against an order under Section 145 Cr.P.C. It is settled principle that in a proceeding under Section 145 Cr.P.C. any finding regarding the right to possess or title or 4 interest is not be decided rather the court has to decide as to which party was in actual physical possession of the disputed property. Any finding of right, title or interest is not in accordance to the provisions of law and the same is set aside. 7 With the aforesaid observation and modification in the order the revision application is hereby disposed of. (AMITAV K. GUPTA, J.) Fahim/