Nakul Singh v. Ali Hussain — 1999 DIGILAW 1255 (PAT)

Judgment G.S.Chaube, J. 1. This application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred to as the Code) is directed against order dated 24.8.1998 of the Sessions Judge, Giridih, in Criminal Revision No. 12 of 1997 reversing the order of an Executive Magistrate made in a proceeding under Section 145 of the said Code and remitting the proceeding for making a fresh order after giving both the parties an opportunity of adducing public documents in support of their respective claims. 2. Brief facts of the case are that on an application having been filed by the present petitioners, the Executive Magistrate of Giridih drew a proceeding under Section 145 of the Code on being satisfied that there was an apprehension of breach of the peace due to dispute in respect of 85 decimals of land of plot No. 287 of Khata No. 135 situate at village Pokharna within Pittand Police Station in the district of Giridih. In the said proceeding the petitioners were members of the first party, whereas the opposite parties were arrayed as members of the second party disputing the title and possession of the members of the first party. 3. The case of the petitioners first party was that the land in question was their raiyati land recorded in the survey khatihan in the names of Beni Singh and Paduman Singh under Khewat No. 28/2 in favour of Jitu Singh. The petitioners claim to be the descendants of the recorded tenants Beni Singh and Paduman Singh. They stated that the land in question was all al6ng in their possession. They had grown paddy over the same and that the members of the second party tried to disturb the possession. On the other hand, the case of the second party-opposite party was that one Harakh Ram was a tenure hold entitled to receive rent from the tenants of the khata No. 135. When rent in respect of the said holding fell in arrear Rent Suit No. 556/37-38 was instituted and a decree obtained. In execution of the said rent decree in execution case No. 234/37-38, the tenure-holder got the entire holding sold through Court and purchased the holding himself and came in possession. He settled the land of plot No. 287 with one Puran Gope on the basis of a registered patta dated 19.4.1939 and put the settlee in possession. In execution of the said rent decree in execution case No. 234/37-38, the tenure-holder got the entire holding sold through Court and purchased the holding himself and came in possession. He settled the land of plot No. 287 with one Puran Gope on the basis of a registered patta dated 19.4.1939 and put the settlee in possession. The settlement was taken for and on behalf of joint family consisting of Puran Gope and his two brothers Kartik Gope and Rijho Gope. Puran Gope died issueless; Rijho also died leaving behind a son Bideshi Gope. It was further case of the opposite parties-second party that Kartik Gope and Bideshi Gope sold the disputed land of plot No. 287 to one Kurban Mian of village Kharpoka within the same police station on the basis of registered sale-deed dated 24.8.1978 and . put him in possession. On his part, the said Kurban Mian gifted the disputed land to the opposite parties-second party, who are his nephews (sisters sons) by registered deed of gift dated 02.3.1988. According to them they were in actual physical possession of the disputed land ever since 1978 on behalf of their donor Kurban Mian. 4. Both the parties put in their written statements examined some witnesses and produced some documentary evidence in respect of their respective claims. After hearing both the parties and on taking into consideration the written statements of the parties and their evidence, oral and documentary, the executive Magistrate came to the conclusion that the members of the first party were in possession of the disputed land and that the members of the second party failed to prove their possession. Hence, he declared the members of the first party to be in possession of the disputed land and restrained the members of the second party to interfere with the possession of the first party until evicted in due course of law. Not satisfied with the said order of the executive Magistrate made on 10.1.1997 in case No. 1065/93 the members of the second party who are opposite parties in this Court, filed a revision application before the Sessions Judge of Giridih under Section 397 of the Code. Not satisfied with the said order of the executive Magistrate made on 10.1.1997 in case No. 1065/93 the members of the second party who are opposite parties in this Court, filed a revision application before the Sessions Judge of Giridih under Section 397 of the Code. By the impugned order the learned Sessions Judge set aside the order of the Executive Magistrate and remitted the proceeding back to the Executive Magistrate for a fresh order after hearing both the parties and giving them an opportunity to produce public documents. Hence, this second revision proceeding by the opposite parties in the Court below. 5. It has been submitted by the learned counsel or the petitioners that the learned Sessions Judge committed an error in setting aside the well-reasoned order of the Executive Magistrate passed on materials by observing that there was an overwhelming documentary evidence in support of the revisionists before him in support of their case. He has further contended that no document has been filed on behalf of the members of the second party before the Executive Magistrate to show that the settlee from auction purchaser Harakh Ram had been put in possession through the process of the Court when the members of the second party had themselves produced document to show that as far back as in 1945, the said settlee had been dispossessed. According to him, the learned Sessions Judge did not act properly in allowing them, in the garb of remand, to adduce evidence for non-production of which they had not given any satisfactory explanation. On the other hand, learned counsel for the opposite parties submitted that in order to do complete justice between the parties, the Sessions Judge in exercise of revisional jurisdiction was perfectly justified in setting aside the order of the Executive Magistrate and remaining the proceeding back for fresh order after giving an opportunity to the parties to bring on record documents which they had failed to produce in course of the inquiry. 6. From the impugned order of the learned Sessions Judge, it appears that at the time of hearing before him, the members of the second party purported to produce certified copies of the order-sheet in execution case No. 149/1948 between 25.8.1948 and 26.11.1948, copy of the petition filed in the said execution proceeding for issuing delivery of possession, and D.P. with S.R. thereof. Those documents weighed in the mind of the Sessions Judge in setting aside the order of the Executive Magistrate. Learned Sessions Judge has observed that the order dated 10.1.1997 of the Executive Magistrate in the proceeding under Section 145 of the Code was made in a slipshod manner without appreciating the documentary evidence on record. The record of the Executive Magistrate discloses that the members of the second party had brought on record, inter alia, certified copy of the judgment passed by the Mun-sif, Hazaribagh in Title Suit No. 159 of 1946 instituted by one Puran Gope of Sahabad against nine persons, including Chhatradhari Singh, and Badri Singh. Petitioner No. 1 herein is the son of Chhatradhari Singh and petitioner No. 2 is the son of Badri Singh. That was a suit for declaration of title and recovery of possession. The case of the plaintiff in the suit was that the holding oikhata No. 135 of village Pokharna including the land of plot No. 287 had been sold in execution of rent decree and purchased by decree-holder Harakh Ram and settled with him and put in his possession. However, he was dispossessed by the defendants in the suit in November, 1945. On the other hand, the case of the defendants was that the land in question was their raiyati land and they were continuing in possession. As a matter of fact, Harakh Ram was a tenure-holder, whereas the land was recorded under a sub-tenure holder whose right title and interest in the sub-tenure was never sold. On full trial, the Munsif accepted the plea of the plaintiff before him and decreed the suit holding that the defendants were trespassers and the plaintiff was entitled to recovery of possession in accordance with law. In the face of such document having been filed without any evidence, either oral or documentary, to show that in execution of the decree passed in Title Suit No. 159/46 the plaintiff who is said to be the predecessor-in-interest of the members of the second party, was ever put in possession of the land of plot No. 287 the find of the Magistrate was not improper. There was oath against oath by both the parties before the Magistrate in respect of possession. There was oath against oath by both the parties before the Magistrate in respect of possession. For the reasons stated in the order, the Executive Magistrate came to the conclusion that the members of the second party had failed to prove that they were in possession when the proceeding was initiated, whereas the members of the first party, namely, the present petitioners had succeeded in proving their possession at the relevant time, consequently, he declared the possession of the present petitioners restraining the other side from interfering with the possession of the petitioners until they were evicted in due process of law. 7. Law is well settled that in the inquiry under Section 145 of the Code the Magistrate has to confine himself to the question of actual possession without reference to the claims of any of the parties to right to possess". The Magistrate has no power to inquire into and decide on the rights of the parties to possess the subject-matter of the dispute before him. Indeed, in such proceedings, the duty of the Magistrate in cases where a decree had been passed by a competent Civil Court awarding possession of the property in dispute or where the possession of the property was delivered by such Court to one of the members of the proceeding, is to find possession in accordance with Civil Court decree or order to possession and maintain such possession. But, such a decree or order of the Civil Court should be of recent time and not of remote past, as in the present case. If considerable time has elapsed between the date of delivery of possession and commencement of the proceeding under Section 145 of the Code, the presumption of continuity of the possession on the basis of such delivery of possession will be some-what weak. Value of an order or decree for possession as a piece of evidence must necessarily vary inversely with the time that has elapsed since the date of such order or decree. Therefore, the Magistrate cannot discard other evidence relating to possession simply on the ground that they had got a previous delivery of possession in respect of the same property. Value of an order or decree for possession as a piece of evidence must necessarily vary inversely with the time that has elapsed since the date of such order or decree. Therefore, the Magistrate cannot discard other evidence relating to possession simply on the ground that they had got a previous delivery of possession in respect of the same property. Incidently, in the present case, there was nowhere stated by and on behalf of the members of the second party that the settlee from the auction-purchaser of the holding of 135 including the disputed plot, admittedly dispossessed by the ancestors of the first party, was put in possession through the process of the Court. In absence of any such statement, much less evidence in support thereof, the Executive Magistrate had no option but to accept the plea of the first party before him that they were in possession at the time of proceeding was drawn. In the Court below no satisfactory explanation appears to have been offered by the members of the second party why document to show delivery of possession was not produced, especially when they had themselves produced a document to show that their predecessor-in-interest, Puran Gope had been dispossessed according to his own saying. Therefore, only to fill up the lacunae in the case of the members of the second party to the proceeding, a reasoned order of the Executive Magistrate should not have been set aside in exercise of revisional jurisdiction. An order under Section 145 of the Code is in the nature of a police order intended to prevent breach of the peace by the disputants claiming title and possession in respect of a piece of land. The very order passed by the Executive Magistrate was that the members of the first party, whose possession he had declared, could be dispossessed by an order of competent Court. Conclusive remedy against such an order lies in a Civil Court of competent jurisdiction. Such order can be interfered within exercise of revisional jurisdiction only if there is some patent illegality or irregularity, or the order is perverse or against the tenor of evidence. On record, nothing of the sort could be noticed in the order of the Executive Magistrate, which was set aside by the sessions Court in exercise of revisional jurisdiction. 8. Such order can be interfered within exercise of revisional jurisdiction only if there is some patent illegality or irregularity, or the order is perverse or against the tenor of evidence. On record, nothing of the sort could be noticed in the order of the Executive Magistrate, which was set aside by the sessions Court in exercise of revisional jurisdiction. 8. In view of what I have discussed above, I find that the interference in the order of the Executive Magistrate by the learned Sessions Judge in exercise of revisional jurisdiction was not justified. Therefore, the application is allowed and the order of the Sessions Judge made in Criminal Revision No. 12/97 is hereby set aside; and the order of the Executive Magistrate dated 10.1.1997 made in Case No. 1065/93 is restored.