Ram Piyari v. Raj Kumar — 1967 DIGILAW 382 (ALL)

ORDER J.N. Takru, J. - This revision by Smt. Ram Piari arises out of proceedings u/s 145 Code of Criminal Procedure. 2. It appears that Baldeo Prasad, the Mukhtaream of the Applicant, moved an application before the District Magistrate, Banda, stating that there was an apprehension of breach of peace between the Applicant and the opposite party in respect of nine cultivatory plots situate in village Bhawai and praying that proceedings u/s 145 Code of Criminal Procedure may be taken in respect of then. The District Magistrate forwarded the application to the Station Officer 'concerned for necessary action. The Station Officer, conducted the necessary enquiry, and on its completion reported to the SDM Naraini that the allegations contained in the said application were correct. On receipt of the report and otherwise satisfying himself that an apprehension of breach of peace in respect of the said plots existed, the SDM Naraini on 28-10-1966 passed a preliminary order u/s 145 Code of Criminal Procedure and pending decision, ordered the plots as also the crops standing thereon to be attached. By the same order he called upon the parties to file written-statements of their respective claims as respect the fact of actual possession of the subject of dispute and to file affidavits and documents in support thereof. Both the parties filed their written-statements, affidavits and documents and the learned SDM Naraini after considering them held that Raj Kumar, the opposite party, was in possession of the disputed plots on the date of the preliminary order and within two months next prior thereto. On these findings he passed an order u/s 145(6) Code of Criminal Procedure in favour of the said opposite party. Srimati Ram Piyari Reeling aggrieved filed a revision in the Sessions Court, Banda but with no better luck. Hence this revision. 3. On behalf of the Applicant two contentions were advanced in support of this revision. The first contention was that having regard to the unequivocal admission made by the opposite party in para. 2 of the plaint of suit No. 8 of 1966 which he filed against the Applicant to the effect that she was in sole and exclusive possession of the plots mentioned at the foot of that plaint (which were the same as are the subject of dispute in the present proceeding) the findings of the courts below to the contrary are perverse and vitiated. His second contention was that, in any case, as a suit u/s 229B/209 UPZA and LR Act between the same parties in respect of the same plots was pending, the learned SDM on being apprised of it, could not proceed, u/s 145 Code of Criminal Procedure though he could take proceedings u/s 107/117 Code of Criminal Procedure if he thought that there was apprehension of breach of peace. After hearing the Learned Counsel for the parties I am satisfied that both these contentions are well founded. I shall therefore proceed to deal with them beginning with the second contention. 4. Now so far as the second contention is concerned it is to be noted that in his written statement, dated 27-10- 1966, the opposite party himself urged, an a ground for the rejection of the Applicant's application u/s 145 Code of Criminal Procedure that a suit filed by her in respect of the same plots Under Sections 229B/209 of the UPZA and LR Act was pending in the court of Sri V.D. Gupta, Assistant Collector, 1st Class, Banda. Hence as soon as the pendency of the said suit was brought to the notice of the learned SDM, he should have, on the language of Section 145 Code of Criminal Procedure and the authorities of this Court, either stayed the proceedings till that fact was proved to his satisfaction, or he should have forthwith dropped the proceedings u/s 145 Code of Criminal Procedure and resorted to the provisions of Section 107/117 Code of Criminal Procedure, instead, if he found, that there was apprehension of breach of peace at the hands of the parties concerned. It is unnecessary to dilate upon this aspect of the case, as the law on it is concluded by the decisions of this Court in Bipta v. Dwarka and Ors. 1961 AWR 658 and Sohan Lal and Anr. v. State and others 1967 AWR 550 . In both these cases it has been uniformly held that the provisions of Section 145 Code of Criminal Procedure should not be invoked when civil litigation in respect of the identical immovable property is pending. It is, therefore, clear that the action of the learned SDM, in nevertheless, proceeding with the case u/s 145 Code of Criminal Procedure was clearly illegal. 5. It is, therefore, clear that the action of the learned SDM, in nevertheless, proceeding with the case u/s 145 Code of Criminal Procedure was clearly illegal. 5. It appears that during the pendency of the proceedings before the learned SDM the Applicant's suit referred to above was decreed exparte on 23-10-1966. As this decree was not brought to the notice of the learned SDM he cannot be blamed for not giving effect to it. But as it has now been brought on the record the position is materially altered. On behalf of the opposite party it was, however, contended that the existence of the said exparte decree was of no consequence as on the application of the opposite party for the setting aside of the said decree, the trial court has issued notice and stayed the operation of that decree. Be that as it may, the question which is material for the present purposes is not whether the said decree is correct or not but that so long as that decree stands it is to be honoured and, if possible, given effect to. It is, therefore, clear that the judgments and orders of the courts below cannot be supported and have to be set aside. 6. As the view taken by me above is sufficient for the disposal of this revision it is not necessary for me to say anything about the first contention advanced by the Learned Counsel for the Applicant but as it was argued at great length before me I consider it proper to 1 give my finding on it as well. As stated above that admission is contained in the plaint filed by the opposite party, against the Applicant on 22-8-1966, i.e. a little over two months before the passing of the preliminary order on 28-10-1966. Para 2 of the plaint, I which is alleged to contain the admission, reads thus: Yah ki pratwadi arazi numbari zail ki Sirdariya hai aur tanha qabiz va dakheel hai. A plain reading of this paragraph shows that on the date on which he filed this plaint, the opposite party's case clearly was that the Applicant was in exclusive possession of the plots in suit as a sirdar. A plain reading of this paragraph shows that on the date on which he filed this plaint, the opposite party's case clearly was that the Applicant was in exclusive possession of the plots in suit as a sirdar. The learned SDM, however, held that by this paragraph all that the opposite party meant was that 'possession based on title remained with Smt. Ram Pyari though Raj Kumar continued to remain in actual physical possession of the disputed plots. This interpretation is clearly untenable in the absence of any allegation to the effect that though the Applicant was the sirdar of the plots in suit, the opposite party was in actual possession of them. So far as the learned Temporary Civil and Sessions Judge is concerned he interpreted the paragraph as meaning no more than an admission on the part of the opposite party that the Applicant's possession was that of a sirdar and not that she was in actual cultivatory possession of these plots at the time when the plaint was filed or at any time prior to it. This interpretation is also not possible for the same reason for which I have rejected the interpretation of the learned SDM. I am, therefore, satisfied that the courts below completely misread the admission made by the opposite party himself, in the plaint aforementioned, and that on a correct reading thereof it is manifest that the opposite party's claim that he was in possession of the plots in dispute on the date of the preliminary order and within two months next prior thereto, is untenable. Thus for this reason also the claim of opposite party that he was in possession of the subject of dispute at; the material time was wrongly accepted by the courts below. 7. On behalf of the opposite party his Learned Counsel placed before me certified copies of the application, which his client moved before Sri V.D. Gupta, Assistant Collector for the setting aside of the exparte decree passed by him, and the stay order passed thereon. 7. On behalf of the opposite party his Learned Counsel placed before me certified copies of the application, which his client moved before Sri V.D. Gupta, Assistant Collector for the setting aside of the exparte decree passed by him, and the stay order passed thereon. If this stay order is produced before the learned SDM and he is satisfied that it amounts to a stay of delivery of possession of the plots in question to the Applicant, he shall not deliver possession to her, but if he is of the opinion that it doer, not do so, or if by the time the matter again comes up before him the stay order is vacated, then he shall, in pursuance of the view expressed above, deliver possession to the Applicant u/s 145(6) Code of Criminal Procedure. 8. Thus for the reasons stated above the judgments and orders of the courts below are set aside, and this revision is allowed.