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1995 DIGILAW 615 (PAT)

Mohan Lal Mahto v. Jugal Kishore Mahto

1995-11-15

P.K.SARIN

body1995
Judgment P.K.Sarin, J. 1. This Criminal revision is directed against the order of 1st Additional Judicial Commissioner, Ranchi in Cr. Revision No. 7 of 1983 passed on 9th June, 1989, setting aside the order of Executive Magistrate in Case No. M-3/1976 dated 10.12.1982 by which the learned Magistrate had held and declared the petitioners possession over the disputed land. 2. It appear that proceedings under Sec. 145 of the code of Criminal Procedure hereinafter referred to as the Code were initiated in respect of plot No. 2345 area 5.05 acres situated at village Lota, P.S. Silli, District- Ranchi, in which the petitioner was the first party and the opposite parties were second party. The petitioner claimed title as well as possession over the disputed land while the second party asserted their possession over the disputed land since long. The opposite parties second party further alleged that in the record of rights the name of the grand father of the first party was wrongly recorded and on its basis the first party had been laying false claim of possession over the disputed land, ignoring the decree and delivery of possession in Title Suit No. 3/35 and compromise in T.A. No. 123 of 1939 and Execution Case No. 44 of 1948 wherein actual physical possession was given to Madan Mahto, the ancestor of the second party and, thereafter, the second party continued to remain in possession. It was further alleged that a Title Suit No. 147 of 1975 was already pending as such the present proceeding under Sec. 145 of the Code of Criminal Procedure should be stayed. 3. The Executive Magistrate, after considering the documents and oral evidence on the records, decided the proceedings in favour of first party holding their possession over the disputed land. The Criminal revision filed by the opposite parties-second party was allowed and the order of the Executive Magistrate was reversed holding that the second party was in possession of the disputed land. The revisional court also took into account the pendency of the Title Suit No. 147 of 1979 when the proceedings under Sec. 145 of the Code of Criminal Procedure were initiated in which the disputed plot No. 2345 was also subject-matter of the suit. Being aggrieved by the said order of the revisional court the petitioners-first party have preferred this revision. 4. Parties have been heard and records have been perused. Being aggrieved by the said order of the revisional court the petitioners-first party have preferred this revision. 4. Parties have been heard and records have been perused. The question of possession was to be decided on the basis of appraisal of evidence. Had it been only a question of appraisal of evidence-perhaps there would not have been any much scope to interfere with to the order. But, the learned Counsel for the petitioners has contended that the revisional court has held that the disputed land was subject matter of title Suit No. 147 of 1975, which was pending from before the initiation of the proceeding under Sec. 145 of the Code as such the proceeding under Sec. 145 of the Code was not maintainable and could not have been continued in view of the decision of the Apex Court in the case of Ram Sumerpuri Mahant V/s. State of U.P. and Ors. -- . According to the learned Counsel for the petitioners, this finding is against the facts because the disputed plot No. 2345 although included in the Title Suit No. 147 of 1975 earlier was deleted by the plaintiffs of the case subsequently as such the disputed plot could not be said to have been the subject-matter of the title suit, as such the finding of the revisional court that it was subject-matter of the title suit is erroneous and consequently the finding based on such erroneous finding of fact is vitiated. 5. The judgment of the revisional court shows that it discussed the contention of the petitioners that the said plot was deleted from the plaint but did not uphold this contention as it found that there was no evidence or material on the record to show whether the amendment application was allowed by the court and whether the amendment was actually carried out in the plaint as in the copy of the decree of the said title Suit No. 147 of 1975 the disputed plot No. 2345 was also mentioned in Schedule-B. The petitioners have annexed as Annexure-I a Photostat copy of the certified copy of plaint of the title Suit No. 147 of 1975 wherein there is endorsement of deletion of plot No. 2345 from Schedule-B and it has reference to Order No. 69 dated 21st November, 1978. This document was not before the Executive Magistrate or the revisional court as such it is a new document to be brought on the record, the question of disputed plot No. 2345 being included in the subject-matter of title Suit No. 147 of 1975 is material for the just decision of the case. According to the opposite parties the copy of the decree passed in Title Suit No. 147 of 1975 which was filed on the record before the Executive Magistrate and which the first revisional court considered contains the disputed plot No. 2345 in Schedule-B while according to the petitioners the disputed plot number was deleted in the year 1978 itself, as would be evident by the Photostat copy of the certified copy of the plaint filed by the petitioners with this revision application as Annexure-1. In view of the conflicting contentions on the basis of the copy of the plaint and on the basis of the copy of the copy of the decree ultimately passed the question whether plot No. 2345 was the subject-matter of title Suit No. 147 of 1975 cannot be effectively decided in the present revision proceeding as it will entail enquiry into the factual aspect and leading of evidence, if necessary, to resolve that controversy and there appears to be no option but to remit the case to the first revisional court to allow the parties to bring the necessary material/documentary evidence on the record and then resolve the controversy regarding the inclusion or exclusion of disputed plot No. 2345 in the subject matter of title Suit of 1975. 6. The learned Counsel for the opposite parties, relying on the decision of this Court in the case of Ram Chandra Rai V/s. State of Bihar and Ors. 1991 Eastern Cri Cases 257, has contended that as the proceeding under Sec. 45 of the Code remained pending for more than seven years the same is liable to be dropped. In the said case the fact was that the proceedings under Sec. 144 of the Code were converted into proceedings under Sec. 145 of the Code on 23.7.1966 and the proceedings remained pending in the court of the Magistrate till 1986. In between a revision was filed before this Court in 1969 and the court had remanded the case to the court of Magistrate with certain directions. In between a revision was filed before this Court in 1969 and the court had remanded the case to the court of Magistrate with certain directions. In the back drop of this factual possession the court observed that the urgent proceedings under Sec. 145 of the Code must be treated to be closed after a lapse of seven years as an urgency cannot be said to continue beyond this period. The court held in respect of the said case that there was no apprehension of breach of pears in the said case and there is no justification for the proceedings to continue under Sec. 145 of the Code any further and the proceedings were, accordingly, quashed. This was done not in revision but in exercise of power of the High Court under Article 226 of the Constitution of India in criminal writ jurisdiction case. On the facts of the present case, the opposite parties do not derive any help from the said Case. No doubt, the question of continuance of apprehension of breach of peace is always a factor to be considered in a proceeding under Sec. 145 of the Code. The case is no longer pending before the Magistrate but the proceedings are pending in this Court against the decision of the revisional court and the revision has to be decided and the proceedings have not to be dropped merely because seven years have passed in the revisional court. If the proceedings are directed to be dropped on the ground of lapse of seven years in respect of proceedings not pending before the Magistrate but pending before the revisional court, it would mean giving scope to the unscrupulous litigant to get the proceedings delayed in the revisional court or get the undue advantage on account of the paucity of time on the part of the court to decide the matter within seven years. I do not think that such a result can be permitted on account of delay in the revisional court. 7. In view of the above discussions, the judgment passed by the first revisional court in Cr. I do not think that such a result can be permitted on account of delay in the revisional court. 7. In view of the above discussions, the judgment passed by the first revisional court in Cr. Revision No. 7 of 1983 by the court of 1st Additional Judicial Commissioner of Chotanagpur, Ranchi, is set aside and the case is remanded to the said revisional court to admit it to its number and to give an opportunity to the parties to bring on record the documentary evidence in the form of, certified copies of the plaint or decree in support of their claims regarding the inclusion or exclusion of the disputed plot No. 2345 in the Title Suit No. 147 of 1975. No oral evidence shall be permitted. After taking into account the documentary evidence, if so filed by the parties the said revisional court shall decide the revision afresh including the effect of the inclusion or exclusion of disputed plot No. 2345 in Title Suit No. 147 of 1975. The parties shall appear before the said revisional court on 14th December, 1995. The parties shall have liberty of file documentary evidence as indicated above by the said date 14.12.1995. The learned revisional court shall decide the case afresh keeping in view the observations of this Court within a period of one month thereafter.