A Magistrate has the power to attach property under Section 146 of the Criminal Procedure Code, 1898, even if the property is in joint possession of both parties.

ORDER :- This revision petition is by the unsuccessful first party in a proceeding under S.145, Cr.P.C.

2. The property in dispute originally belonged to one Mallik Makbul who died without any issue. Petitioner 2, Sarifin Bibi, claims to be the widow of Mallik Makbul. But the opposite party alleged that she was the concubine and not the legally wedded wife of Mallik Makbul. Petitioner 1 Mallik Rafiq is a minor aged about ten years. He is the own brother of opposite party Mallik Abdul Hakim and Mallik Khauzar and all the three are the sons of one Mallik Namdar who was a brother of Mallik Makbul. The petitioners case appeared to be that Mallik Rafiq was brought up by Mallik Makbul as his own son and after Makbuls death his property was possessed by his widow, namely, Sarifin Bibi and Rafiq. The opposite party, however, stated that after Makbuls death they came into possession of his property being his nephews and that they continued in possession till the attachment of the property in the proceeding under S.145, Cr.P.C.

3. Both parties led evidence on the question of possession. The trial Court disbelieved the evidence of the first partys witnesses and held that the second party were in possession of the disputed property. So far as his finding about the first party not being in possession of the disputed property is concerned, I see no ground for interference as it is a pure finding of fact.

4. But its finding that the second party were in possession is based on a failure to carefully study the evidence led by the second partys witnesses themselves and also the statement made by the second party in their show-cause petition. In that petition para 5 is to the following effect.

"Mallik Makbul unka chalanti achalanti sampatire ambhe dutiya pakhya o prathama pakhya Mallik Rafiq waras sutre malik dakhalkar achhu."

(We second party and first party Mallik Rafiq as heirs of Mallik Makbul are in possession of his movable and immovable property).

The second partys case as put forward at the commencement of the proceeding under S.145, Cr.P.C., was that petitioner Rafiq was living joint with them and that all the three brothers namely, Mallik Rafiq, Mallik Abdul Hakim and Mallik Khauzar succeeded to the property of Makbul as his heirs and were in possession of the same. No specific case of exclusive possession of Makbuls property by the second party was put forward in that petition. Again while giving evidence in Court the second partys witness Mir Idrice (witness. No.2) stated even in examination-in-chief as follows :

"Before attachment both parties were living jointly and were possessing jointly and enjoying the usufruct of the disputed lands."

In cross-examination also he admitted that Rafiq was living jointly with his brothers. It is true that the other witnesses of the second party have attempted to show that the disputed property was possessed exclusively by the second party and not jointly by the second party and the first party. But their evidence can hardly be believed in view of the written statement filed by the second party mentioned above and in view of the categorical statement about joint possession made by Mir Idrice, the second witness of the second party. Moreover, Mallik Abdul Hakim, one of the members of the second party gave prevaricating statements when cross-examined on the question of jointness or separation. The trying Magistrate noted in the deposition of this witness.

"The witness is not answering the question if Rafiq and Sarifin Bibi are living jointly or not. The witness is asked four or five times and he repeats that they are living with Ibrahim."

The reluctance of this witness to admit the jointness with the first party is quite understandable. Apparently realising that his own show-cause petition may go against him he has attempted to prevaricate. But in view of the clear evidence of Mir Idrice and the admitted fact that Rafiq of the first party is the own brother of the second party and is a minor the reasonable i