Patna High Court
Naina Sah And Anr. vs Ramrup Sah And Ors. on 3 July, 1964
Equivalent citations: AIR1965PAT104, 1965CRILJ328, AIR 1965 PATNA 104, 1965 BLJR 528 ILR 44 PAT 845, ILR 44 PAT 845
ORDER 1. The petitioners have come up to this Court against an order of the Magistrate of Bhagalpur by which he decided a proceeding under Section 145 of the Code of Criminal Procedure against them. The dispute was in respect of about 6 bighas of land, being one-third of a holding measuring 10 bighas 15 kathas and odd, recorded in the record of rights in the name of one Dhusar Sah. The opposite party, who constituted the first party before the learned Magistrate, were in possession of the remaining two-thirds for a long time. The petitioners, who constituted the second party before the teamed Magistrate, are agnates of the opposite party. According to the opposite party, the entire holding belonged to, and was in possession of, the ancestors of the parties when they were joint, but it was recorded in the record of rights in the name of Dhusar Sah, who was their benamdar. Subsequently, in 1906, a deed of relinquishment was executed by Dhusar Sah in favour of the joint family properties; and in 1907, the three branches of this family divided the entire holding amongst themselves. The opposite party represented two or these branches. In 1915, the third co-sharer is said to have transferred the disputed area along with his share to one Maghraj Ram Marwari. In 1932, Maghraj Ram Marwari is said to have sold it to Anant Ram Marwari, who sold it to the opposite party in 1939. The petitioners, that is, Naina Sah and Ramlal Sah, claimed to have purchased the disputed area from one Gowardan Ram, alleged to be the son of Dhusar Sah. It may be mentioned here that one Sita Ram Sah was also a member of the second party, but he supported the case of the opposite party. The opposite party, however, said that Dhusai Sah did not leave any son, and his widow left the village after selling the homestead land of Dhusar Sah in 1906; this homestead land was the only land which belonged to Dhusar Sah. 2. Both parties filed written statements, documents and several affidavits. The learned Magistrate considered the effects of the documents which came into existence from the period between 1906 and 1939, as also the rent receipts filed on behalf of the opposite party. He also referred to the seven affidavits filed on behalf of the second party, i.e. the petitioners in this Court, as also to the equal number of affidavits filed on behalf of the first party. The inference drawn by him with reference to the documents was that the petitioners were never in possession of these lands. He also considered the affidavits and referred to the statements contained in the affidavits filed on behalf of the first party, that is to say, the opposite party in this Court. With reference to the affidavits filed on behalf of the petitioners, the learned Magistrate observed; "The witnesses who have come to support the possession of the 2nd party do not appear to be reliable. Their evidence is not at all consistent with the documentary evidence and the circumstances and the probabilities of the case". Having considered the affidavits as well as documentary evidence, he upheld the possession of the first party before him. 3. The only question raised by the learned Advocate for the petitioners in this Court is that the affidavits filed on behalf of the petitioners have not been considered in accordance with law. It is stated at the Bar that the case was referred to a Division Bench mainly for the purpose of deciding in what manner a Magistrate is required to consider the affidavits filed in a proceeding under Section 145 of the Code. The relevant provision is contained in Sub-section (4) of Section 145 of the Code which reads as follows: "(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject. Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein." The proviso is not important in the instant case, because none of the deponents of the affidavits was summoned or examined in court. What the substantive provision requires is that the Magistrate has to peruse the written statements, documents and affidavits arid then hear the parties in order in decide the dispute. It was not urged that the written statements and documents were not perused and considered by the learned Magistrate. But the learned advocate contends that the affidavits of the petitioners were not considered, in the sense the word "peruse" is used in this provision There are some single Judge decisions of some Hon'ble Judges of this Court on this point. In Arjun Singh v. Singeshwar Choudhary, AIR 1980 Pat 513 which was decided by Kanhaiya Singh, J., the learned Magistrate had said; "There is oath against oath and affidavits against affidavits. It is difficult to attach any value to those oaths and affidavits". On this ground, the learned Judge set aside the order of the learned Magistrate after observing as follows: "He had to consider the affidavits and give reasons for accepting the affidavits of one or the other party. He cannot ignore the affidavits and base his finding of possession on documents or other circumstances." Then, there are three decisions of Kamla Sahai, J. in Shah Jamilur Rahman v. Abdul Aziz, AIR 1960 Pat 240 also the Magistrate had ignored the affidavits saying that there were oaths against oaths. Sahai, J., therefore, observed that in view of the latest amendment of Section 145, the learned Magistrate was entirely wrong in thinking that it was not necessary even to consider the affidavits which now lake the place of oral evidence given by the witnesses, Even when witnesses are examined and cross examined in Court, it was possible for a trial Court to say that there was oath against oath, and it would be hardly a consideration of the oral evidence Sahai, J. therefore, observed that the same rule should apply in the case of affidavits, and the Magistrate should consider the "affidavit of each deponent and should give his reasons for accepting or not accepting it". I shall show presently that the learned Judge did not mean to suggest by this observation that separate reasons should be given for accepting or rejecting each affidavit The same principle was reiterated by Sahai J. in Rudra Singh v Bimla Debi, AIR 1960 Pat 505. His Lordship observed that the affidavits should not be brushed aside by saying that "there is oath against oath or that the affidavits cannot displace the weight of the documentary evidence." In Chando Sharma v. Inderdeo Singh, AIR 1964 Pat 239 the learned Judge referred to his two previous decisions and observed that the learned Magistrate "must consider the affidavits just as oral evidence is considered. It is true that he cannot be expected to give very detailed reasons for accepting or rejecting the evidence because there is no cross-examination, but his discussion must be such as to satisfy this Court that he has applied his mind to the affidavits". These observations put, in our opinion, in a nutshell, the correct manner of considering the affidavits filed by the parties in a proceeding under Section 145 of the Code Then there are two decisions of Rajkishore Prasad namely, Sohan Mushar v. Kailash Singh, AIR 1962 Pat 249 and Mt. Sarfi v. Mt. Sugo, AIR 1962 Pat 253. In both these decisions, the learned Judge followed the first two decisions of Kamla Sahai, J., and with reference to the dictionary meaning of the word "peruse" he observed that this word required the Magistrate to read attentively and examine critically the affidavits filed. In the second decision, the learned Judge observed: "It should appear from the order of the Magistrate that he has in fact given consideration to the affidavit of each deponent and had given reasons for accepting or rejecting the same. He must mention who the several deponents are whose affidavits have been filed and why the statements contained in the affidavits of a particular deponent should not be accepted. * * * * If the affidavits of each party are considered in a bunch, in one lump, without giving reasons for doing so, it is no consideration of the affidavits. If, however there exists one ground for accepting or rejecting an affidavit, and that ground equally holds good in case of other affidavits also, then certainly in such a case the Magistrate can give that one ground tor accepting or rejecting the affidavits of more than one person, and, he can take them all in one lump and consider them together". There is a Bench decision of this Court in Chandradip Singh v. R.B.B. Verma, 1962 BLJR 105; (1962 (2) Cri LJ 577) and there the learned Judge referred, with approval, to the earlier decisions of Kanhaiya Singh, J, and Kamla Sahai, J.
4. To sum up: The correct legal position is this. The Magistrate must peruse, i.e., examine and consider each of the affidavits; and the order must indicate that he has applied his mind to the affidavits. He must consider the affidavits in the same manner as a court would consider the oral evidence in a case; hut if the Magistrate merely says in his order that one party has filed affidavits which go against the affidavit of the other party, or that there is oath against oath, this amounts to non-consideration of the affidavits. It would be necessary to give separate reasons for accepting or rejecting each affidavit only when different reasons arc to be given for the purpose. But if one, reason or one set of reasons applies to two or more affidavits, it is not necessary for the Magistrate to record the reasons separately for each affidavit, and one set of reasons would be sufficient for acceptance or rejection of a bunch of affidavits.
5. The manner in which affidavits, filed by the parties in a proceeding under Section 145 of the, Code, are dealt with by the Magistrates, is, by no means, uniform and presents some difficulty. Ordinarily, we come across three kinds of cases. In one class of cases, it is generally found that the Magistrates pass orders on the basis of the documents and other materials on the record without any reference to the affidavits filed by the parties concerned. In the other class of cases, we find that the usual observation of the Magistrates with regard to the affidavits is to the effect that there is oath against oath and as such much importance cannot be attached to them on the question of possession. The third category of cases are those in which the Magistrates concerned usually mention about the merits and demerits of the affidavits filed by the parties and determine their evidentiary value in the light of the other evidence and circumstances of the case.
In our opinion, no flexible rule can be it down as to the manner in which a court should peruse the affidavits as required by Section 145(4) and determine their evidentiary value along with the other evidence on the record. The manner of the examination of the affidavits by a Magistrate will vary in each case according to the nature of he dispute between the parties and the contents of the affidavits. In vast majority of the cases the affidavit filed on behalf of the parties to the proceedings are of stereotyped nature and there are difficulties are often Experienced in judging properly the truth or otherwise of the assertions contained therein for want of the cross examination of the deponents. Naturally, therefore the courts have to consider the affidavits in the light of the other evidence, it any, on the record. It is imperative however, that the Magistrates should peruse the affidavits tiled by the parties and also other statements and documents, it any as required by Section 145(4) of the Code. That being so, the order of the Magistrate must show that he has considered the affidavits, that is, he has applied his judicial mind to the assertions contained therein. Evidently, therefore, orders passed in the first two classes of cases will show that there has been no compliance with the statutory provisions contained in Section 145(4), and as such, the orders passed in those classes of cases may successfully be impugned on the ground of non-consideration of the affidavits. The nature of the order falling In the third category of cases cannot, however, be challenged simply because a Magistrate has not discussed elaborately each affidavit separately. It is open to a Magistrate to discuss the affidavits filed on behalf of each party collectively of individually according to the facts and circumstances of each case, He can determine their evidentiary value by assigning common ground briefly as well All that is necessary is that the order passed by the Magistrate should show that he has brought his judicial mind to bear upon the contents of the affidavits.
6. Keeping in view the above principles, is for consideration whether, in the instant case, the learned Magistrate has applied his mind in he affidavits of the petitioners or not. As stated earlier, the learned Magistrate has said that the deponents of the affidavits filed on behalf of the petitioners do not appear to be reliable and their evidence is not at all consistent with the documentary evidence, circumstances and probabilities of the case. We have none through all the affidavits with the learned advocates for the purpose; and we find that the one reason, that is, the reason that the statements of the deponents do not seem to be reliable, was sufficient to reflect all the affidavits filed on behalf of the petitioners, who constituted the second party before the learned Magistrate. No person having land on the boundaries of the disputed land swore any affidavit on behalf of the petitioners. One Ramrup Mahto claimed to have been cultivating the land of Raja Ram on the southern boundary of the disputed land as bataidar "for the last 3 or 4 years." This affidavit was sworn in August 1959, and thus his claim as bataidar would not go beyond sometime to 1956; but the proceeding under Section 145 was started in March 1958, after converting an earlier proceeding under Section 144 of the Code of Criminal Procedure started on the basis of the police report dated the 4th November 1957 Further opposite party Kanti Sao statedin his affidavit dated 26-5-1960 that this Ramrup was not of Rajaram and that he had sworn an affidavit on account of a criminal proceeding pending between him and Ramrup One Sukhdeb Mahton also filed in affidavit in support of the petitioners case and claimed to have land to the south-east of the disputed land al some distance, but he also said that a major part of his land had been cut by River Kosi None of the other affidavits indicate where the deponents has then land and how they are competent to speak about possession. Further Kanti Sao has said his affidavit that he has enmity with two of the deponents namely, Sakhichand Sahu and Bechan Hajra on acount of litigations which were still pending. The learned Magistrate, therefore was justified in discarding the affidavits filed on behalf of the petitioners on the ground that they were not reliable for the purpose of possession.
Earlier in the order the learned Magistrate has given the names of the deponents of the affidavits of both the parties. Then he has referred specifically to two affidavits namely, of Lalita Prasad and Kailash Pati, filed on behalf of the apposite party which speak about the possession of the opposite party. Then, there is the affidavit of a boundary witness Baleshwar Prasad Choudhary, son of Singheshwar Choudhary who had admittedly land on a boundary of the disputed land. The statements regarding possession of the opposite party in these affidavits are consistent with the documentary evidence and the circumstances of the case. Hence the learned Magistrate was justified in rejecting the evidence of the deponents on behalf of the petitioners on the ground that if was not reliable and that it was not at all consistent with the documentary evidence or circumstances of the case. The approach of the learned Magistrate towards the consideration of these affidavits is therefore, not wrong; and the contentions raised on behalf of the petitioners are rejected.
7. In the result, the application fails and accordingly dismissed.