Mossomat Jhalo Devi v. Jagannath Mondal — 1997 DIGILAW 678 (PAT)

Judgment S.N.Mishra, J. 1. The 2nd party are the petitioners in this Criminal Revision application, which arises out of an order dated 12.9.1986 passed by the learned 1st Additional Sessions Judge, Deoghar, in Criminal Revision No. 9 of 1985, whereby he had declared the possession of the land, in dispute, in favour of 1st party opposite party in a proceeding under Section 145, Cr PC after setting aside the order dated 15.2.1985 passed by the learned Magistrate. On a petition filed by the 1st party opposite party a proceeding was initiated under Section 144, Cr PC on 7.11.1981, which was subsequently converted into 145, Cr PC on 8.1.1982 and the parties were directed to file their show cause and produce evidence in support of their respective cases. 2. The case of the petitioners, in short, is that the plots, in question, along with other plots were recorded in the name of their father Ajodhya Rout. Their further case is that their ancestors were paying rent in respect of the disputed plots and were in continuous possession over the same. The case of the 1st party, on the other hand, is that no doubt the plot, in question was originally stands recorded in the name of Ajodhya Rout but he was evicted form the aforesaid plots due to arrears of rent vide rent execution case No. 405/1934-45. It is alleged that the grand-father of the opposite party Chutar Mandal had made the entire arrears of rent due to State Exchequer on behalf of said Ajodhya Rout and, accordingly, it was agreed that the said 2 plots measuring an area of 1.64 decimals would be settled in favour of grand-father of the opposite party. It is alleged that the then Sub-Divisional Officer, Dumka, by his order dated 26.4. 1939 recorded the aforesaid plots in favour of Chutar Mandal, the grand-father of the opposite party, and the remaining plots were returned to the father of the petitioner, namely, Ajodhya Rout. It is further alleged that the grand-father of opposite party came in possession of the aforesaid plots in the year 1940 by virtue of delivery of possession effected by the learned Sub-Divisional Officer, Dumka. It is further alleged that the grand-father of opposite party came in possession of the aforesaid plots in the year 1940 by virtue of delivery of possession effected by the learned Sub-Divisional Officer, Dumka. As stated above, 1st party opposite party filed an application on 5.11.1981 before the Deputy Commissioner, Dumka, stating therein that the petitioners and their father are bent upon to harvest the crops grown by him and on the basis of the aforesaid petition a proceeding was initiated under Section 144, Cr PC. The parties laid oral evidence as well as filed several documents before the learned Magistrate in support of their respective cases. The learned Magistrate by his order dated 15.2.1985 has declared the possession of the disputed lands in favour of the petitioners. Being aggrieved by the said order of the learned Magistrate the (sic) he preferred an application before the learned Sessions Judge, which was registered as criminal revision No. 9 of 1985. The learned 1st Additional Sessions Judge by the impugned order has set aside the order of the learned Magistrate and declared the possession of the land, in question, in favour of 1st party opposite party. 3. Mr. Jha learned counsel for the petitioners has challenged the order of learned Judge mainly on the ground firstly that the leaned revisional Court while setting aside the order of the learned Magistrate has not considered the evidence adduced on behalf of the parties in right perspective and secondly the learned Judge has wrongly relied upon the decision of the Deputy Commissioner passed in a proceeding under Section 42 of the Santhal Parganas Tenancy Act, 1949 (hereinafter referred to as the Act). Accordingly, it is submitted that the order passed by the revisional Court is completely vitiated in law. 4. In order to appreciate the contention of Mr. Jha it is relevant to mention here that the petitioners filed a petition purported to be under Section 42 of the Act much prior to initiation of a proceeding under Section 145 Cr PC stating therein that the 1st party opposite party has forcibly harvested the paddy crops standing over the land, in question, and asked for appropriate relief. Jha it is relevant to mention here that the petitioners filed a petition purported to be under Section 42 of the Act much prior to initiation of a proceeding under Section 145 Cr PC stating therein that the 1st party opposite party has forcibly harvested the paddy crops standing over the land, in question, and asked for appropriate relief. The said application was addressed to the Chief Secretary, Government of Bihar, who in turn referred the said application before the competent authority, namely, the Deputy Commissioner for initiating an appropriate proceeding under the Act, which was registered as Revenue Eviction Case No. 16/77.78. The learned Sub-Divisional Officer has refused to evict the 1st party opposite party from the land, in question, by his order dated 27.11.1980 on the ground that the disputed lands were acquired by the 1st party opposite party in rent eviction case on account of the non-payment of the rent and since then he is in possession of the land, in question. Being aggrieved by the said order of the learned Sub-Divisional Officer, the petitioners filed an appeal, which was registered as Revenue Misc. Appeal No. 346/80-81. Learned Deputy Commissioner on consideration of the evidence on record and after hearing the parties has dismissed the appeal and thereby confirmed the order of the learned Sub-Divisional Officer. Admittedly deliver by possession was effected with respect to the land, in dispute, in favour of 1st party opposite party by the competent Court, as stated above. 5. The possession of the 1st party opposite party has virtually been admitted by the petitioners, as it appears from the petition filed before the Chief Secretary, Government of Bihar wherein it has been admitted that the petitioners had harvested the paddy crops grown on the land, in question. This admission of the petitioners was made much before initiating the proceeding under Section 145, Cr PC, which go to show that the 1st party opposite party was coming in possession over the land, in question, much before the date of initiation of the 145 proceeding. The learned Magistrate had not appreciated this aspect of the matter and igncred the delivery of possession effected in favour of the opposite 1st party only on the ground that the same was effected 8 years before the initiation of proceeding under Section 145, Cr PC. The learned Magistrate had not appreciated this aspect of the matter and igncred the delivery of possession effected in favour of the opposite 1st party only on the ground that the same was effected 8 years before the initiation of proceeding under Section 145, Cr PC. The second relevant document is the order of the learned Deputy Commissioner passed in revenue misc. appeal No. 346 of 1980-81 wherein the petitioners were the appellants and the opposite party 1st party was the respondent. The said appeal was filed against the order dated 27.11.1980 passed by the Sub-Divisional Officer, Deoghar, in R.E. case No. 16/77-78 whereby the prayer of the petitioners for eviction of the 1st party opposite party from the land, in question, has been rejected. It may be mentioned here that the Deputy Commissioner is vested with the power to decide the right, title and possession over the land situated in the district of Santhal Parganas. Both the Sub-Divisional Officer as well as the Deputy Commissioner have rejected the prayer for eviction of the opposite party from the land, in question, which is valid and legal piece of evidence in order to show that the 1st party opposite party is in possession of the land, in question. It may be mentioned here that the order was passed by the Deputy Commissioner on 4.5.1982 during the pendency of the proceeding, before passing of the final order. The learned Magistrate has committed an illegality in ignoring the order passed by the competent authority having vested with the power to decide the question of title as well as possession. Learned Magistrate has rejected the order passed by the Deputy Commissioner only on the ground that since the enquiry report having not been considered in its right perspective the said order cannot be given effect to. 6. The learned Judge has rightly observed in his order to the effect that the order passed by the competent authority could not have been ignored by the learned Magistrate and I may say so rightly. It is not open to the learned Magistrate deciding the proceeding under Section 145 to ignore the order passed by such competent authority on mere technical ground. It is not open to the learned Magistrate deciding the proceeding under Section 145 to ignore the order passed by such competent authority on mere technical ground. More so, the enquiring officer has not been examined by the learned Magistrate nor the alleged enquiry has been made in accordance with law and, as such, the learned revisional Court has rightly disbelieved the case of the petitioners on this Court. From the order passed by the competent authority, namely. Deputy Commissioner, who by his order dated 4.5.1982 has rejected the prayer of the 2nd party-petitioners to evict the 1st party from the land, in question. Obviously it goes to show that the opposite party 1st party was in possession of the land, in question, and the prayer for eviction of the 1st party from the land, in question has rightly been refused. The learned revisional Court has rightly observed in its order that if the order of the learned Magistrate is allowed to stand, it will lead to anomalous position as the two orders passed by the two competent Courts will be directly in conflict with each other. The observation of the learned Judge is, in my view, perfectly correct in the facts and circumstances of this case. The order passed under Section 145, Cr PC is subject to the condition that the party who has been declared possession shall not be evicted unless and until declaring possession to the contrary by the competent court. The 1st party opposite party will have to again file a petition before the same authority who has already decided the title and possession of the land in dispute in his favour. The order of the Deputy Commissioner, being, a competent authority, could have been challenged in revision before the Commissioner of the division but nothing is on the record to indicate that the petitioners have challenged the order of the Deputy Commissioner passed under Section 42 of the Ac. The order of the Deputy Commissioner, being, a competent authority, could have been challenged in revision before the Commissioner of the division but nothing is on the record to indicate that the petitioners have challenged the order of the Deputy Commissioner passed under Section 42 of the Ac. As regards the non-consideration of the evidence on record I have perused the order passed the revisional Court wherefrom it appears that all the documents relevant for the purpose of deciding the question of possession have been considered particularly the two orders passed in the aforesaid two revenue eviction cases and the appeal arises therefrom, the non-consideration of the oral evidence will not, in any way, change the position since all the relevant documents with regard to the possession of the land, in question, have been considered while passing the impugned order. 7. Having heard the learned Counsel for the parties and gone through the materials on record including the orders under challenge I do not find any illegality in the same as the learned Judge has considered all aspects of the matter including the relevant documents available on record for the purpose of deciding the question of possession. It is true that oral evidence has not been considered but that will not make any difference as the very basis document showing that title and possession including other relevant documents have been fully considered by the learned Judge. Accordingly, this revision application is dismissed. 8. At this stage, I could have remitted the case back to the learned Magistrate for passing a fresh order in accordance with law but it would be futile in the facts and circumstances of this case as the two competent Courts legally vested with the powers to decide the question of title have already decided in favour of the opposite party 1st party.