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Rajasthan High Court · body

1999 DIGILAW 1107 (RAJ)

L. R. of Ganeshmal v. Velaram

1999-08-27

V.S.KOKJE

body1999
Honble KOKJE, J.–In this case the main question to be determined is as to whether the suit filed by non-petitioner under Sec. 6 of the Specific Relief Act is maintainable? (2). The facts of the case are that one Shri Rundas, s/o Shri Shanker Dass Vaishnav had mortgaged a plot of land in village Rani, with Ganeshmal s/o Fouzmal on 15.1.1934. This property was not got redeemed by the mortgagor and on 25.5.90 Jodharam s/o Lumbaram and Poonaram s/o Rajaram were alleged to have forcibly taken possession of the plot of land and the construction standing thereon. As there was apprehension of breach of peace, the Station House Officer, Police Station, Rani, lodged a complaint with the Sub-Divisional Magistrate, Bali under Sec. 145 Cr. P.C. against Ganeshmal s/o Fouzmal as party No.1 and Jodharam and Poonaram as party No.2. On 25.9.85 the proceedings were disposed of by the learned Sub-divisional-Magistrate declaring Ganeshmal to be in possession of the property. (3). On 14.1.86 Ganeshmal moved an application purportedly to be under Sec. 145 Cr. P.C. stating therein that the proceedings under Sec. 145 Cr. P.C. were decided on 25.9.85 and Ganeshmal s/o Fouzmal had been declared to be in possession of the property. It was further alleged in this application that the possession of Ganeshmal had been declared to be of a date two months prior to the preliminary order, and, therefore, the possession of the plot should be ordered to be given to Ganeshmal through the help of police. Accordingly, a direction was prayed to be given to the SHO, Rani, to hand-over the possession of the plot to Ganeshmal s/o Fouzmal. On this application, without notice to the other side, the Sub-Divisional Officer wrote a letter to the SHO, Rani, directing him to put Ganeshmal in possession and report back immediately. Under this order the possession of the property was handed over to Ganeshmal by the police in absence of the opposite parties by breaking the locks open. (4). Vela Ram s/o Jodharam, moved an application before the SDO on 27.1.86 complaining that the said plot was in his possession as he had purchased it on 31.5.79 from one Baldas, s/o Sakaram. He contended that though Jodharam was his father, he had nothing to do with the property which belonged to Velaram who was a major person residing separately from Jodharam for ten years. He contended that though Jodharam was his father, he had nothing to do with the property which belonged to Velaram who was a major person residing separately from Jodharam for ten years. He also stated in the application that when he had gone out because of some bereavement in the family of a relative, Ganeshmal had succeeded in taking possession of the property in his absence through the help of police. He prayed for being put back in possession. The SDO dismissed this application as not maintainable because the proceedings had come to a final end on 25.9.85 itself. Aggrieved, Velaram filed a revision petition before the Additional Sessions Judge, Bali which was allowed on 03.4.87 and the order dated 25.9.85 was set aside with a direction that Jodharam and Poona Ram be put back in possession. Ganeshmal filed a Criminal Misc. Petition against this order in this Court and by an order dated 03.1.90, this Court set aside the order of the Sessions Court on the ground that Velaram not being a party to the proceedings under Sec. 145 Cr. P.C. had no right to challenge the proceedings in a revisionand the Sessions Court had no jurisdiction to order restoration of possession to Jodharam and Poonaram who had not challenged the order dated 25.9.85. During these proceedings before the High Court, Velaram pointed out that he had already filed a civil suit under sec. 6 of the Specific Relief Act and the Court, therefore, observed that the orders passed in those proceedings would not affect the rights of Velaram in the civil proceedings. Thus, the dismissal of the revision petition would have no effect on the civil suit filed by Velaram under Sec. 6 of the Specific Relief Act, out of which this revision petition arises. (5). On 27.3.96 the civil court decided the suit under Sec. 6 of the Specific Relief Act and decreed the suit in favour of the plaintiff. Against this decree the present revision petition has been filed by Devraj s/o Chunnilal, the legal representative of Ganeshmal, who was brought on record in the trial court itself, on the death of Ganeshmal. (6). On 27.3.96 the civil court decided the suit under Sec. 6 of the Specific Relief Act and decreed the suit in favour of the plaintiff. Against this decree the present revision petition has been filed by Devraj s/o Chunnilal, the legal representative of Ganeshmal, who was brought on record in the trial court itself, on the death of Ganeshmal. (6). The main contention of the learned counsel for the revision petitioner is that the suit was not entertainable under Sec. 6 of the Specific Relief Act as the non-petitioner plaintiff was evicted under an order of the SDM and it cannot be said that such an eviction would be without due process of law. The learned counsel for the non-petitioner on the other hand submitted that the order under which the plaintiff non-petitioner was evicted was wholly without jurisdiction. The Court after disposing of the proceedings under Sec. 145 Cr. P.C. had become functus officio and no further order in the same file could have been passed by the Sub-Divisional Officer. It is further submitted that as the final order in the proceedings under Sec. 145 Cr. P.C. proclaims Ganeshmal to be in possession, there was no question of putting him in possession again. The letter written by the Sub-Divisional Officer to the SHO, Police Station, Rani, was, therefore, totally unauthorised and without jurisdiction according to the learned counsel. It was submitted that eviction under such an unauthorised order could not be said to be eviction in due process of law. (7). I have heard the learned counsel and perused the record. (8). In the trial court Velaram examined himself and two other witnesses. He proved the registered sale deed executed in his favour. He also proved that he was in possession after the sale deed dated 30.5.79 and he was evicted on 21.1.86 under the orders of Sub-Divisional Officer, in the proceedings in which Velaram was not a party. The trial court has, on appreciation of evidence, found that Velaram was the owner of the property having purchased it on 31.5.79 through a registered sale deed and was in possession from that date till the date of his dispossession on 21.1.86 under the orders of the Sub-Divisional Magistrate. The trial court held that the order u/Sec. 145 Cr. P.C. was not against Velaram and was not binding on him. (9). The trial court held that the order u/Sec. 145 Cr. P.C. was not against Velaram and was not binding on him. (9). Apart from Velaram not being a party to the proceedings under Sec. 145 Cr.P.C., it has also not been shown or proved that Velaram was in possession through Jodharam s/o Lumbaram and Poonaram s/o Rajaram. Actually, in the proceedings under Sec. 145 Cr.P.C. party No.2 had already pointed out that the property was in possession of Velaram from 31.5.79. It was also pointed out that Ganeshmal had lodged a report in the Police Station Rani, on 08.6.80 that on 28.5.80 the party No. 2 had taken possession of the property. It was also pointed out that Ganeshmal had filed a civil suit on 20.9.80 in the civil court alleging that the opposite party had taken possession of the property from 28.5.80. These pleas were neither considered by the Sub-Divisional Magistrate nor Velaram was ordered to be made party to the case. In such circumstances, to say that in execution of an order passed in the proceedings under Sec. 145 Cr.P.C Velaram who was not a party to those proceedings could be evicted and such process could be called the due process of law, is not acceptable. (10). There is one more aspect in the case which goes to the root. The order dated 25.9.85 categorically declares Ganeshmal to be in possession of the property. If that was so, there was no occasion for Ganeshmal to move the Court, after the final order in the case for being put back in possession. Proceedings after 29.9.85 were clearly without jurisdiction as they could not be said to be proceedings in execution of the order dated 25.9.85 also. The order dated 25.9.85 was not an order which required to be executed because it is only a declaratory order declaring that Ganeshmal was in possession of the property. Even assuming that Ganeshmal had applied for execution of that order, the Sub-Divisional Magistrate could not have issued an order to the SHO, Police Station, Rani, straightaway to dispossess the opposite party without giving any opportunity to the other side. Therefore, it is clear that the letter dated 15.1.86, written by the Sub-Divisional Magistrate, Bali to the SHO, Police Station, Rani, was wholly without jurisdiction and unauthorised. (11). Therefore, it is clear that the letter dated 15.1.86, written by the Sub-Divisional Magistrate, Bali to the SHO, Police Station, Rani, was wholly without jurisdiction and unauthorised. (11). The question which arises for consideration now is as to whether dispossession under such an order of an officer could be said to be in due process of law. In the circumstances of the case, it is clear that the plaintiff non-applicant was evicted under a direction given by the Sub-Divisional Magistrate, to the SHO, Police Station, Rani, purportedly in compliance of an order passed on 25.9.85 in proceedings to which the plaintiff-non applicant was not a party. To say that such a dispo-ssession was in due process of law, would be a complete travesty of the concept of rule of law and justice. (12). In the result, this revision petition fails and it is dismissed accordingly.