YALLAWWA v. KENCHAPPA HANAMAPPA BATTUR — 1985 DIGILAW 322 (KAR)

N. R. KUDOOR, J. ( 1 ) THIS Criminal Revision Petition is directed against the order dated 4-7-1984 passed by the Sessions Judge at Dharwar in Cr. R. P. No. 20/84 allowing the revision petition and setting aside the order dated 2-2-1984 passed by the Sub-Divisional Magistrate, Savanur Sub-Division, savanur, in MAG. CR. PC. SR. 12/83 and remanding the case for disposal according to law in the light of the observations made in the order. ( 2 ) THE matter arises in this way : the Sub-Divisional Magistrate, on the basis of a report of the P. S. I. Kundgol, passed a preliminary order dated 3 1-1984 as required under Section 145 (1) of the Code of Criminal Procedure (the code) directing the members of both the parties to attend his Court on 10-1-1984 in person or by Advocates and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Smt. Yallawwa and Sri Balappa Hanamappa Neginal were the members of the first party and Kenchappa Hanamappa battur and Smt. Madavva were the members of the second party. Both the parties entered appearance, filed their statements and produced the documents and the affidavits in support of their respective claims. The Sub-Divisional magistrate was unable to satisfy himself as to which of the parties was in possession of the land on the date of issue of preliminary order on the basis of the material produced by the parties and so attached the subject matter of dispute namely the entire land comprised in survey Number 25 under Section 146 (1) and further appointed the Tahsildar, kundgol, as the receiver under Section 146 (2) and directed him to take action to dispose of the standing crops by conducting public auction separately in respect of the two portions measuring 13 acres 1 gunta and 13 acres 2 gunts and to credit the same to the P. D. Account of the Sub-Divisional Magistrate, Savanur sub-Division, Savanur. ( 3 ) THE second party carried the matter to the Court of the Sessions judge at Dharwar in Cr. R. P. No. 20/84. ( 3 ) THE second party carried the matter to the Court of the Sessions judge at Dharwar in Cr. R. P. No. 20/84. The learned Sessions Judge, after hearing both the parties, came to the conclusion that the material produced before the sub-Divisional Magistrate had disclosed that the subject matter of the dispute was in the possession of a Court receiver appointed by this Court and continued by the Supreme Court in certain proceedings between the parties and on that ground he further held that notice of the proceedings under Section 145 should have been issued to him in order to do complete justice between the parties and on that basis he set aside the order and remanded the matter to the Sub-Divisional Magistrate to dispose of the matter afresh in accordance with law after giving notice to the receiver appointed by this Court and continued by the supreme Court. ( 4 ) BEING aggrieved by this order of the learned Sessions Judge, the first member of the first party preferred this revision petition. The members of the second party are respondents-1 and 2 and the second member of the first party is respondent-3. The State is made as respondent-4 in this revision petition. ( 5 ) HEARD the learned Advocates appearing for both the parties. Perused the records. ( 6 ) THE records produced in the case show that a receiver was appointed by this Court to Sy. No. 25 which is the subject matter of the dispute in this case and the receiver so appointed by this 'court was continued by the Supreme court in this very matter which is now pending before the Supreme Court. ( 6 ) THE records produced in the case show that a receiver was appointed by this Court to Sy. No. 25 which is the subject matter of the dispute in this case and the receiver so appointed by this 'court was continued by the Supreme court in this very matter which is now pending before the Supreme Court. However, Sri Deshpande, the learned advocate for the petitioner, in assailing the correctness and legality of the order under challenge advanced the following contentions : ( 7 ) FIRSTLY, he contended that since the subject matter of the dispute being a tenanted land, it came to be vested in the State Government on and with effect from 1-3-1974 under Section 44 of the karnataka Land Reforms Act, 1961 and further clause (iii) of sub-section (1) of section 133 of the said Act provides that all interim orders issued or made by any court, officer or Authority referred to in clause (i), whether in the nature of temporary injunction or appointment of a receiver or otherwise, concerning the land shall stand dissolved or vacated as the case may be ; the receiver appointed by this Court to the land in question and stood continued by the Supreme Court has no consequence and as such the presence of the receiver in the proceedings under Section 145 of the Code was not necessary. ( 8 ) THERE is hardly and dispute that a receiver was appointed by this Court and the said receiver was continued by the Supreme Court in the civil litigation between the parties in respect of the subject matter of the dispute, which is now pending disposal in the Supreme court and the receiver so appointed having come into possession, was managing the property as per the direction of the Court. Now the question is whether the receiver who came into possession of the land in question under the authority of the civil courts ceases to be in possession by operation of law as contended by sri Deshpande by virtue of the provisions of the Karnataka Land Reforms Act 1961 (the Act for short) on which he placed reliance. It is no doubt true that all lands held by or in the possession of tenants etc. It is no doubt true that all lands held by or in the possession of tenants etc. , shall with effect on and from, the date on which the Karnataka land Reforms 'amendment) Act 1/74 came into force stood transferred to and vested in the State Government. The consequences ensued upon such vesting of the land in the State Government have been enumerated in sub-section (2) of section 44 of the Act and clause (e) of sub-section (2) stipulates that the State government may, after removing any obstruction which may be offered, forthwith take possession of such lands provided that the State Government shall. not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed, that he is prima facie entitled to be registered as an occupant under Chapter III. Now turning to Section 133 clause (i) of sub-section (1) stipulates that notwithstanding anything in any law for the time being in force, no Civil or Criminal court or Officer or Authority shall, in any suit, case or proceedings concerning a land, decide the question, whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974. Clause (iii) further provides that all interim orders issued or made by any of the authorities enumerated in clause (i), whether in the nature of temporary injunction or appointment of a receiver or otherwise, concerning the land shall stand dissolved or vacated as the case may be. In other words, the interim orders so made would become ineffective or rendered non-est. It does not provide for automatic cessation of possession of the land by the receiver who had come into possession of it as receiver appointed by a competent Court. He could be dispossessed only in accordance with law. It is thus seen, that either under section 44 or under clause (iii) of subsection (1) of Section 133 of the Act, possession of the land held by the receiver appointed by the civil court would not automatically come to anend by operation of law. He would continue to be in possession till he was dispossessed in accordance with law. It is thus seen, that either under section 44 or under clause (iii) of subsection (1) of Section 133 of the Act, possession of the land held by the receiver appointed by the civil court would not automatically come to anend by operation of law. He would continue to be in possession till he was dispossessed in accordance with law. ( 9 ) BESIDES, in this case, it is also seen from the order passed by the Subdivisional Magistrate that the parties had contended before him that the receiver had questioned the grant of occupancy right in favour of the petitioners by a writ petition filed in this Court and obtained a stay of the order passed by the Land Tribunal. Whatever may be the ultimate and final decision on these matters, it seems to be that the presence of the receiver is absolutely necessary to render a satisfactory decision in respect of the disputes raised by the parties in the proceedings before the Sub-Divisional Magistrate respecting the subject matter of the dispute. ( 10 ) THE second contention urged by Sri Deshpande was that the Vacation district Judge at Dharwar had granted an exparte order of injunction against respondent-1 in the suit O. S. No. 46/82 filed by Chanabasappa Battur, the husband of the petitioner Yallawwa, and as such the contention raised by respondent 1 regarding the physical possession of the subject matter of the dispute could not be entertained. The said suit, on transfer, was re-numbered as O. S. No. 29/82 on the file of the Munsiff Court at kundgol. It is stated that the suit in question was stayed by an order of this court in W. P. No. 32318/82. Even if there was an injunction granted in favour of the husband of the petitioner and operating against respondent-1, the same may not be binding against the receiver appointed by this Court. The only question now required to be considered is whether the conclusion reached by the learned Sessions Judge that the receiver appointed by this Court is a necessary party in the proceedings before the Sub- divisional Magistrate and from that point of view the injunction obtained by the petitioner's husband and operating against respondent-1 is of no consequence. The only question now required to be considered is whether the conclusion reached by the learned Sessions Judge that the receiver appointed by this Court is a necessary party in the proceedings before the Sub- divisional Magistrate and from that point of view the injunction obtained by the petitioner's husband and operating against respondent-1 is of no consequence. ( 11 ) THE third and the final contention urged by Sri Deshpande was that it is no body's case that the receiver appointed by this Court is in possession of the subject matter of the dispute. This contention seems to me totally untenable. Undoubtedly, it was contended before the learned Sessions Judge that the receiver appointed by this Court was in possession and managing the subject matter of the dispute on the basis of certain documents produced before him. In this view of the matter, to say that it is no body's case that the receiver appointed by this Court is in possession of the property may not stand the scrutiny. Thus, I find no force in this contention also. ( 12 ) EVEN otherwise, when it was urged before the Sub-Divisional Magistrate by the parties that a receiver appointed by this Court was in possession of the subject matter of the dispute, he could not have exercised his powers under sub-section (2) and appointed a receiver to which a receiver had already been appointed by the Civil Court even though he had attached that property in exercise of the powers conferred under sub-section (1) of Section 146. This is obvious from sub-section (2) which reads that when the Magistrate attaches the subject of dispute, he may, if no receives in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof. If the matter is looked at from this angle also, it cannot be said that the order passed by the learned Sessions judge is erroneous. ( 13 ) BEFORE parting with this case, it is necessary to notice that the Sub-Divisional Magistrate had disposed of this matter on the basis of, not only the records produced, but also the affidavits filed by the parties on their behalf in respect of their contentions. ( 13 ) BEFORE parting with this case, it is necessary to notice that the Sub-Divisional Magistrate had disposed of this matter on the basis of, not only the records produced, but also the affidavits filed by the parties on their behalf in respect of their contentions. This Court has laid down in a number of rulings that under the amended Section 145 of the Code, production of affidavits of the parties or of their witnesses by way of evidence has been dispensed with and in its place provision is made to receive the evidence of the parties and their witnesses. The Sub-Divisional Magistrate shall take note of this aspect while holding the fresh enquiry as per the order of the learned Sessions Judge. ( 14 ) IN the result, for the reasons stated above, the revision fails and the same is dismissed. ( 15 ) SEND the records along with the copy of this order, as soon as the order is signed, to the Sub-Divisional Magistrate, Savanur. --- *** --- .