1984 Supreme(MP) 549

S. K. Seth, J.
Datar Singh v. Bahadur Khan.
Cr. R. No. 441 of 1982 (J); Decided on 3-9-1984.

Headnote:(1) Criminal P. C, 1973 -- S. 145 -- order passed on irrelevant material -- liable to be set aside.

        (2) Civil P. C., 1908 -- O. 39 Rr. 1 and 2 -- injunction order under -- suit dismissed -- order becomes meaningless.

        The preliminary order was passed by the Magistrate on 19-9-1977. Thereafter, the parties submitted their written statements and produced, their evidence, it was decided by the Magistrate vide his final order dated 4-8-1981 that it was party No. 2 Datar Singh who was in possession of the subject of dispute on the relevant date. It was declared by him vide the said order that the party No. 2 was entitled to possession of the subject of dispute until evicted therefrom in due course of law. The party No. 1 was forbidden from disturbing such possession until such eviction.

        Being aggrieved by the order of the Magistrate, the party No. 1 preferred a revision in the Court of session. The Court of Session vide its order dated 28-5-1982 allowed the revision, set aside the order passed by the Magistrate and decided the matter in favour of party No. 1, granting necessary declaration in its favour. It is being aggrieved by it that the party No. 2 has filed the present second revision in this Court.

        It was an admitted position in the case that Shamahadkhan had been the original recorded holder of the disputed land. Shamahadkhan died in 1966. After his death, the land come to be recorded in the name of Dilshadkhan. Dilshadkhan died sometime in the year 1976. After death of Dilshadkhan, party No. 2 was initially successful in getting its name mutated over the land behind the back of his legal representatives on 10-2-1976. The said mutation was set at naught by the Board of Revenue vide its order dated 26-5-1979.

        Held : Now, the party No. 1 claimed to be in possession of the land since the year 1974 under an agreement of Batai said to have been executed by Dilshadkhan in its favour on 2-7-1974. On the other hand, the claim made by the party No. 2 was that it had purchased the disputed land from Shamshadkhan for a consideration of Rs. 800/- in the year 1952 and he was continuing to be in possession, of the said land since then. However, the party No. 2 did not have any sale-deed executed by Shamshadkhan in its favour. Again, strangely, it did not take any steps to get its name mutated in place of Shamshadkhan for over 20 years.

        It was true that the party No. 2 had filed a civil suit against Dilshadkhan in the year 1974 and obtained a temporary injunction on 14-7-1975. But, then the said suit was ultimately dismissed on 5-7-1977 on account of his failure to bring the legal representatives of Dilshadkhan on record. N was obvious that with the dismissal of the party No. 2s suit the temporary injunction granted to it on 14-7-1975, ceased to have any meaning. Inspite of that, the Magistrate, in the present case under section 145 of the Code of Criminal Procedure, decided the matter in favour of the party No. 2 on the basis of the said temporary injunction. He also overlooked the fact that the mutation entry on the basis of which the temporary injunction had been granted by the Court was subsequently set at naught by the Board of Revenue.

        The temporary injunction order dated 14-7-1975 had become meaningless, Similarly, the mutation entry dated 10-2-1976 had become irrelevant. Thus, the order passed by the Magistrate in favour of the party No. 2 was based on irrelevant material. In the circumstances, the Court of Session was justified in reaching a fresh finding on the question of possession after appreciating the relevant material produced by the parties on the said point. While doing so, the said Court did not exceed its revisional jurisdiction. Revision dismissed.