Allahabad High Court
Jayanti Prasad And Ors. vs Kamal Narain And Ors. on 21 October, 1997
Equivalent citations: 1998CRILJ4689
Author: P.K. Jain
Bench: P.K. Jain
ORDER P.K. Jain, J.
1. Heard Sri Dharm Pal Singh, learned counsel for the revisionists and Sri L.P. Singh, learned counsel for opposite parties Nos. 1 to 3.
2. By preliminary order dated 13-11-79 proceedings under Section 145, Cr.P.C. were initiated in respect of plots Nos. 2, 3, 4, 5, 7 and 212, areas 5 bighas, 19 biswas and 14 biswansis. The revisionists claimed possession over 1 bigha 10 biswas in plot No. 7 on the strength of a sale deed said to have been executed by Sarju Narain, one of the co-sharers with regard to his share of land in the aforesaid plot of land. The learned magistrate on consideration of the evidence adduced by the parties gave a finding that Sarju Narain had executed sale deed of his share of land in the disputed land. On the basis of the sale deed names of the opposite parties were mutated in the revenue records. The learned magstrate also observed that the parties had adduced oral evidence which is supported by police report and Sarju Narain was in possession of plot No. 7. The learned magistrate, therefore, passed an order holding that 1 bigha 10 biswas land of plot No. 7 was in exclusive possession of the present revisionists and remaining 3/4th of the disputed land was in possession of the other party.
3. Aggrieved by this judgment of the trial Court the other three co-sharers, Kamal Narain, Jagdish Narain and Satya Narain filed criminal revision No. 46 of 1986 which was allowed by the revisional Court and the judgment and order of the trial Court was set aside.
4. The judgment and order of the revisional Court is assailed on the ground that there was oral evidence on record to the effect that there was mutual partition between Sarju Narain and other co-sharers. In pursuance to the mutual partition Sarju Narain is in exclusive possession of 1 bigha 10 biswas of plot No. 7. This was a finding of fact of the trial Court which has been interfered with by the revisional Court by exceeding his jurisdiction.
5. Having heard learned counsel for the parties I do not find any merit, in this revision. As already pointed out above the preliminary order was in respect of the entire land consisting of plots Nos. 2, 3, 4, 5, 7 and 212, area 5 bigha 19 biswas 14 biswansis. The revisionists claimed to have purchased land from Sarju Narain and there is specific observation of the learned magistrate that only the share of Sarju Narain was purchased. Still strangely enough the learned magistrate gave a finding on the basis of oral evidence that plot No. 7, area 1 bigha 10 biswansis (eastern part) was in exclusive possesion of Sarju Narain and possession of the same was delivered by Sarju Narain to the vendees. Sale deed has admittedly not been filed. Yet the learned magistrate relied upon oral evidence which could not have been taken into consideration in view of the provisions contained in Section 91 of the Indian Evidence Act which provides that when the terms of a contract or of a grant, or of any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. Thus Section 91 specifically bars acceptance of oral evidence of the terms or the contents of adocument whereby immovable property is disposed of. Besides this there is on record judgment of the civil Court in suit No. 234 of 1979 which ws contested between the parties. Issue No. 1 was to the effect "if there was mutual partition between the parties as alleged in para 2 of the plaint?" The Court while giving finding on issue No. 1 repelled the contention of the plaintiffs and held that respondent No. 3 had 1 1/4th share entire land of the Khata in question. Thus the claim of mutual partition was rejected by the Civil Court. Even the learned magistrate has not given any finding with regard to mutual partition and possession in consequence of mutual partition. By the judgment and order dated 28-8-86 the learned magistrate actually passed the decree of partition which was beyond his jurisdiction. When a preliminary order was in respect of entire land belonging to the parties, the learned magistrate could not have passed final order in respect of part of the land holding that part of which was in exclusive possession of the present revisionists.
6. It is settled law that when there are proceedings between the co-sharers and mutual partition is not. established, then proceedings under Section 145 Cr.P.C. cannot be initiated. The reason is that a co-sharer has share and is deemed to be in possession along with other co-sharers on every inch of the joint land.
7. In this view of the matter the judgment and order passed by the learned magistrate could not be justified. There is no error in the judgment of the revisional Court. The learned Sessions Judge should have, however, while allowing the revision directed the proceedngs to be dropped.
8. The revsion is hereby dismissed and it is directed that the proceedings under Section 145, Cr.P.C. shall be deemed to be dropped as not maintainable. Parties having grievance may approach the appropriate revenue Court for partition of the land in question. Stay order dated 19-1-87 shall stand vacated.