In a proceeding under Section 145 of the Code of Criminal Procedure, the Magistrate's duty is to determine actual possession, not title or right to possession. Title is of little importance under this Section except in so far as it may be available to show who was in actual physical possession of the land at the time when the proceedings are taken.

S. N. Jha, J.

This application has been filed for setting aside a final order dated 3.10.1986 passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter-referred to as "the Code").

2. The dispute relates to plot nos. 1357 and 1358 of Khata No. 146 having total area or land measuring 7 Bighas 3 Kathas 1 Dhur situate in village-Deokall, P. S. Mohammadpur in the district of Gopalganj. The second party is the petitioner before this Court.

3. The facts which led to the filing of this application, in short, are that on the basis of a police report, a proceeding under Section 144 of the Code was initiated which subsequently was converted into proceeding under Section 145 of the Code.

4. The petitioners claimed the disputed plots which is a tank and its Bhinda on the basis of two sate deeds executed in the year 1970 and 1975 by the original owner and on the basis of the aforesaid sale-deeds, they came in possession of the lands in dispute. According to the case of the petitioners, these two survey plots have been recorded in the name of Ramadhar Dubey and Mukhlal Dubey etc. in the record of rights. The heirs of recorded tenant Jhakkar Dubey, Nakha Dubey and others used to pay rent to the Ex-landlord and after the abolition of the zamindari under the Bihar Land Reforms Act, they were paying rent to the State of Bihar.

5. Further case of the petitioners is that in 1970 by two registered sale deeds Satya Narain Dubey @ Master Dubey sold the property to the members of the second party (petitioners). In the year 1975 Tarkeshwar Dubey also executed his share to the members of the second party and thus, the rights of all the heirs, namely, Satya Narain Dubey and Tarkeshwar Dubey were purchased by the members of the second party and on the basis of these two aforesaid sale-deeds they claimed exclusive possession over the disputed land. According to them, their names were also mutated in the serista of the State of Bihar and they paid rents to the State, in token of which the State of Bihar also granted rent receipts. After acquiring these properties the members of second party have been rearing fish in the pond for, their own consumption and for sale.

6. According to the case of the opposite party (first party), the females of the villagers of village-Hakkam, and Deokali are performing 'Chhath' over the Bhinda of the tank and there are large number of srispotas on the Bhinda in which the females performed their puja after taking bath in the Pokhra. It is also claimed that on the western side of the Bhinda, there is one 'Idagah' of Mohammadans of village-Bakkam, where they hold prayer every year. According to them, the said tank is used by general public and nobody has got any exclusive right over the tank. The villagers, the general public of village Bakkam and Deokali, are performing 'Chhoth' festival and prayer on the 'Idagah' situate on the Bhinda of the said tank since time immemorial and any execution of the sale-deeds in favour of the members of the second party are forged and not operative. According to their case, they also used the water for drinking purpose and also for drinking of their cattle. The member of the second party never came in possession over the land.

7. In pursuance of the notice issued in the said proceeding, both parties appeared and filed their show cause and they also adduced evidence in support of their claim. Some documents were also filed on behalf of the petitioners (second party) in the said proceeding. Annexure-2 appended to this application is the record of the survey khatian. The survey khatian shows that plot nos. 1357 and 1358 of khata no. 146 has been recorded as Bhinda and Pokhar respectively. Both these plots are recorded in the name of Ramdbari Dubey son of Manu Dubey, Mukhlal Dubey son of Raj Kumar Dubey and Jhakkar Dubey son of Acharya Dubey with equal shares. In the remark column certain trees are also recorded in possession of Ram Lal Singh son of Mohan Singh, Nage