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Criminal Revision No. 316 of 1968, decided on 16th January 1969.

S. 145-‑Dispute as to possession of immovable property‑Magistrate while passing order failing to consider important documentary evidence bearing on question of possession‑Magistrate, held, failed to exercise his jurisdiction‑Order not sustainable in law.

Kailas Behari Lal v. Joi Narain Rai and others 21 Cr. L J 601 ref.

Abdus Salam with Abdul Baset Majumdar for the 2nd‑Party Petitioner.

Khandakar Muhbubuddin Ahmed and Syed J. R. Mudassir Hussain for the 1st‑Party‑Opposite‑Parties.

This Rule was issued upon an application filed by second party‑petitioners Jabbar Ali and 20 others challenging the legality of the order passed by Mr. M. I. Chowdhury, Magistrate 1st Class, Chandpur on 11‑4‑67 in a proceeding drawn up under section 145 of the Code of Criminal Procedure declaring the 1st‑party‑opposite‑party No. 2 Hyder Ali Miji to be entitled to the possession of the proceeding land until evicted therefrom in due course of law and forbidding all disturbance of possession until then. The facts, in brief, are that the 1st‑party‑opposite‑party No. 2 Hyder Ali Miji filed an application under section 145, Cr. P. C. and his case was that the proceeding land in C. S. Plot Nos. 1474, 1475, 1298, 1548, 1549, 1476, 1479, 1533, 1474/1656, 1475/1627 of mouza Barali, P. S. Faridganj covering an area of 16‑38 decimals were sold in auction in a certificate case and he purchased the same and got delivery of possession through Court on 22‑4‑1960 and since then he had been in physical possession of the same. On 27‑11‑63 at about 9‑30 a.m. he got a G. D. entry recorded in the Thana to the effect that the second‑party men led by Jabbar Ali and others came to cut away the standing paddy forcibly from his land and there was an apprehension of breach of peace. Police submitted report on 28‑11‑63 and thereafter the proceedings were started. The case of the second‑party‑petitioner was that the proceeding lands belonged to Dinesh Chandra Chakraborty and his five brothers that except Dinesha the rest had left for India and that from the aforesaid Denish, they purchased the proceeding lands. On behalf of the 1st‑party opposite‑party 8 witnesses and on behalf of the second‑party‑petitioner 4 witnesses were examined. Some documentary evidences, namely, sale certificate and copies of writ of delivery of possession Exhs. 1 to 4 and some other documents were put in evidence on behalf of the 1st‑party. On behalf of the second‑party also some documents including certified copy of a judgment of the Supreme Court of Pakistan in Criminal Appeal No. 8‑D of 1963 were produced. The learned Magistrate in his judgment stated that he had carefully scrutinised the evidence and held that the Ist‑party be entitled to the possession of the proceeding 1 ends until evicted therefrom. Against the aforesaid decision the second‑party‑petitioners preferred 4 revisional application namely Criminal Motion No. 102 of 1967 in the Court of the Sessions judge of Comilla but without success. Hence the second‑party‑petitioners preferred this revisional application which is opposed on behalf of the Ist‑party‑opposite‑party No. 2, Hyder Ali Miji.

It was contended on behalf of the second‑party‑petitioner that in coming to a finding on the question of possession in favour of Ist‑party‑opposite‑party No. 2 the learned Magistrate did not properly consider the documentary evidence produced on behalf of the second‑party and particularly the copy of judgment of the Supreme Court in Criminal Appeal No. 8‑D of 1963. It appears from the judgment of the learned Magistrate that this document was put in before him for consideration but there is nothing to show that he applied his mind on the question of possession with reference to the observation and finding of Supreme Court on the question of possession in the proceeding lands and especially in respect of Plot No. 1475 which, according to the finding of the Supreme Court, was in possession of the complainant of that case namely, Lani Mia Gazi who is the second party petitioner No. 8. The learned Magistrate having failed to consider this important documentary evidence bearing on the question of possession, failed to exercise his jurisdiction and his order cannot be sustained in law. A reference in this connection may be made to the decision in the case of Kalias Behari Lal v. Joi Narain Rai and others (21 Cr. L J 601) wherein it was held that when a Magistrate does not consider both the, oral and documentary evidences in a proceeding under section 145 of the Code of Criminal Procedure, he fails to exercise his jurisdiction and his order is liable to be set aside.

In the circumstances the order of the learned Magistrate dated 11‑4‑67 declaring the Ist‑party‑opposite‑party No. 2 to be entitled to the possession of the proceeding land, is set aside and the rule is made absolute.

Rule made absolute.

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