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1991 DIGILAW 399 (ALL)

Panna Lal v. Rajvir

1991-03-11

S.R.BHARGAVA

body1991
JUDGMENT S.R. Bhargava, J. - This revision, under Section 397 Cr.P.C. is directed against order dated 3rd April, 1984, passed by V Additional Sessions Judge, Meerut in Criminal Revision No. 5 of 1980. Facts as they emerge are that deceased Jugal Kishore Sharma was son of Ghasi Ram. Opposite party No. 1 Rajvir is son of Jugal Kishore. Said Jugal Kishore moved application to the S.D. M. against the revisionists for proceedings in respect of a piece of land alleging that Ghasi Ram was using the land for his residence and for 'preaching. He got a Kotha, Chabutara and a well constructed on the land. After the death of Ghasi Ram, Jugal Kishore continued in possession. On 14th April, 1972 revisionist filed a suit in respect of the same land in civil court. Order for maintaining status quo was passed. But on 6th October, 1978 that suit was dismissed. Then the revisionist started interfering with the land illegally and started constructions. When they were asked to desist they threatened Jugal Kishore and were determined to commit breach of peace. On this application S.D.M. called police report and issued preliminary order under Section 145 (1) Cr.P.C. 2. Opposite parties put in objections and contended that the land has been Samadhi of Satti of Jain community and has been in possession of the Jain community. Jains started constructing Dharmshala over the land. Then the interference was made in construction of the Dharmshala. 3. Both the parties adduced oral and documentary ' evidence. Learned Magistrate discussed the evidence at length and came to the conclusion that the revisionists were in possession on the date of preliminary order. Hence he directed Judge Kishore not to interfere in the possession of the revisionist until decision by competent court. After this Jugal Kishore died. Rajvir filed revision in the sessions court. Learned Additional Session Judge did not say that appreciation of evidence by the Magistrate was perverse or was illegal or that the approach of the Magistrate was vitiated by any error of law. The learned Additional Sessions Judge discussed the question of title raised by both the parties. Ultimately he came to the conclusion that the land is of public utility. He found that none of the parties is in possession. Hence he allowed the revision, set aside the order of the S. D. M. and directed that the revisionists shall be dispossessed. 4. Ultimately he came to the conclusion that the land is of public utility. He found that none of the parties is in possession. Hence he allowed the revision, set aside the order of the S. D. M. and directed that the revisionists shall be dispossessed. 4. Against this, revisionists came to this Court. Revision was admitted and operation of the order of the Additional Sessions Judge was stayed. 5. During the pendency of the revision Ram Mehar Singh and twelve others filed application for being impleaded in the revision. Their application was allowed. They also applied for vacating the stay order, That application is pending. 6. I have perused the orders of the Magistrate and the Additional Sessions Judge. I have also perused the documents filed by the parties in this revision. Parties counsel have been heard at length. 7. What Section 145 (4) Cr.P.C. requires the Magistrate to do is "without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute.......... decide whether any and which of the parties was, at the date of the order made by under sub-section (1), in possession of the subject of dispute". Words "without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute" them- selves make it clear that the question of possession should be decided without any reference to title or right to possess. Under Section 145 Cr.P.C. the Magistrate is not to decide the question of title. He is simply required to decide question of possession. The Additional Sessions Judge could have done only what the Magistrate could have done. It is thus obvious that the learned Additional Sessions Judge was not justified at all in entering into question of title, then saying that the land is land of public utility and then requiring dispossession of the revisionists. It is thus manifest that the Additional Sessions Judge exercised jurisdiction not vested in him. His order is illegal and cannot be sustained. 8. Then the question arises what order should be passed in this revision. On behalf of the opposite parties it was contended that the suit filed in 1972 by the revisionists was dismissed in default. But it was subsequently restored and opposite parties No. 2 to 11 were impleaded in that suit. His order is illegal and cannot be sustained. 8. Then the question arises what order should be passed in this revision. On behalf of the opposite parties it was contended that the suit filed in 1972 by the revisionists was dismissed in default. But it was subsequently restored and opposite parties No. 2 to 11 were impleaded in that suit. It is urged that the said suit between parties with respect to the same property is still pending. It was contended on behalf of the opposite parties that in view of the law laid down in the case of Ram Sumer Giri Mahant v. State of U.P., 1985 (22) ACC 45 (SC), parallel proceedings in criminal court should not be allowed to continue and the parties should seek orders from the civil court. Learned counsel for the revisionists is not in a position to say whether the suit is still pending or not. It may be that suit has been decided. If the suit has been decided the decision of the civil court shall be binding on the Sessions Judge seized of the revision. If the suit has not been decided the revisional court can ascertain the correct position and pass proper order. To my mind the proper course in this revision would be to set aside the order of the Additional Sessions Judge and send back the case to Sessions Judge for fresh decision according to observations made and according to law. 9. In result, this revision is allowed. Impugned order of the Additional Sessions Judge is set aside. Revision is sent back to the Sessions Judge for fresh hearing and disposal according to observations made above and according to law. Ex parte stay,, order granted by this Court is vacated.