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2001 DIGILAW 1098 (PNJ)

Fateh Singh v. Karan Singh

2001-10-08

K.C.GUPTA

body2001
Judgment K.C.Gupta, J. 1. This is a petition under Section 482, Cr.P.C. filed by Fateh Singh son of Kanhiya for quashing the judgment dated 15.2.1989 (Annexure P2), of the learned Additional Sessions Judge (III) Rohtak, and the order dated 12.2.1988 (Annexure P1), passed by the Sub Divisional Magistrate, Rohtak. 2. Briefly stated the facts are that petitioner Fateh Singh and the proforma respondents Maha Singh etc. were owners in possession of a Gitwar situated near the Pucca road. A dispute was raised by Karan Singh respondent No. 1 and as such, the police prepared a Calender under Section 145, Cr.P.C., and the property was attached. The petitioner filed the written statement dated 21.1.1996 and stated that they were the owners in possession of the disputed site, since the time of their forefathers and they had constructed a Khor in it and also tathered their cattle over this land and used it for sitting purpose as well. Karan Singh on the other hand stated in his affidavit dated 29.11.1985 that the site in dispute was in their peaceful possession and it was part of Khasra No. 9780. He also stated that the Panchayat had decided the dispute on 15.7.1985 in his favour. 3. The Sub Divisional Magistrate, Rohtak, had decided the matter in favour of Karan Singh respondent No. 1 on 19.5.1986. The petitioner filed a revision which was accepted vide order dated 4.9.1986 and the matter was remanded by the Additional Sessions Judge, Rohtak for a fresh decision after giving opportunities to the parties to lead evidence. 4. After the remand order, the Sub Divisional Magistrate, Rohtak, vide order dated 12.2.1988 decided the matter again in favour of Karan Singh respondent No. 1 and held that respondent No. 1 was in possession of the site in dispute as it was part of his Gitwar. 5. Aggrieved by the said order the petitioner filed a revision before the Additional Sessions Judge, Rohtak, which was dismissed vide judgment dated 15.2.1989 (Annexure P2). 6. The precise allegation of the petitioner is that if a non-member takes part in the proceedings of the Panchayat then the whole proceedings are vitiated but if he is merely present and does not take part, then the proceedings are not vitiated. 6. The precise allegation of the petitioner is that if a non-member takes part in the proceedings of the Panchayat then the whole proceedings are vitiated but if he is merely present and does not take part, then the proceedings are not vitiated. Since, in the present case non-members of the Gram Panchayat participated and decision Ex.R1 was adopted, so it could not be looked into and the learned Additional Sessions Judge has not been taken into consideration this fact. So, he stated that the Courts below had exceeded their jurisdiction vested under the Criminal Procedure Code and the judgment in question in void ab-initio. 7. I have heard learned consel for the petitioner, Shri H.S. Hooda, Sr. Advocate along with Sh. Anil Rathee, Sh. I.S. Balhara counsel for respondent No. 1, Sh. Sidharth Sarup, AAG, Haryana and carefully gone through the file. 8. A perusal of the order of the Sub Divisional Magistrate dated 12.2.1988 shows that the after discussing the evidence, he had come to the conclusion that according to the decision of the Gram Panchayat Ex. R1, the disputed land is part of Gitwar of Karan Singh and it was in his possession upon which Fateh Singh petitioner had constructed unauthorised Khor and installed Khunte and, therefore, the second party Karan Singh was declared owner of the land in dispute marked-`ABCD. 9. Learned counsel for the petitioner contended that the decision Ex. R1 of the Gram Panchayat is not admissible under law and has been vitiated due to the presence of Ex-Sarpanch and others who had also thumb marked it as witnesses. It has been observed in Onkar Singh v. State of Haryana, 1971 PLJ 607 that where non-member also participated in the proceedings of a body when whole proceedings will be vitiated. Since, non-members had also participated, so, the decision Ex. R1 cannot be taken into consideration as it is vitiated by the presence of non-members of the Panchayat. It is alleged by respondent No. 1 that the land in dispute was part of Khasra No. 9780 and Khewat No. 1879. Shri Tej Ram who was grand-father of Karan Singh respondent was shown to be its owner. It was admitted by Fateh singh that the land of Karan Singh is situated near and towards the road. It is alleged by respondent No. 1 that the land in dispute was part of Khasra No. 9780 and Khewat No. 1879. Shri Tej Ram who was grand-father of Karan Singh respondent was shown to be its owner. It was admitted by Fateh singh that the land of Karan Singh is situated near and towards the road. From the mere fact that the petitioner had constructed Khor or had installed Khunte or tathered his cattle does not show that he was in effective possession of the land in dispute. The revision petition filed by Fateh Singh has already been dismissed. There is nothing on the file to hold that petitioner was the owner in possession of the site in dispute. On the other hand, there is evidence that at one time grand-father of Karan Singh respondent was in possession of the same. As already discussed, I may state (at the cost of repetition) that mere construction of Khor and installation of Khunte in the site in dispute does not show possession of the petitioner. 10. Learned counsel for the petitioner also contended that the witnesses of Fateh Singh petitioner and others were effectively cross-examined by the opposite party but no question was put to Fateh Singh and his witnesses about the ownership and possession of the land in dispute and as such, it should be presumed that ownership and possession were admitted. Prima-facie, there is no force in the contention of the learned counsel for the petitioner because the documentary evidence shows that at one time grand-father of Karan Singh respondent was the owner of this land. Karan Singh respondent had also stated in his affidavit that he was in possession of the same. Mere tethering of cattle etc. at the site in dispute does not prove that petitioner was in possession of the same. Even the learned Magistrate, on spot verification had found the second party to be in possession of the land in dispute. 11. Thus, I hold that there is no justification to exercise jurisdiction under Section 482, Cr.P.C., as the judgment of the learned Additional Sessions Judge, Rohtak dated 15.2.1989 (Annexure P-2) and the order of the Sub Divisional Magistrate dated 12.2.1989 (Annexure P1), are not illegal or perversed. Hence, this revision petition is dismissed.