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2001 DIGILAW 489 (PAT)

Vidya Pati Pandey v. Surendra Nath Pandey

2001-06-27

A.K.SINHA

body2001
Judgment A.K.Sinha, J. 1. This revision application has been directed against the order dated 18.1.1999 passed by Executive Magistrate, Buxar in Case No. 105 of 1997 under Section 145 of the Cr. PC whereby and whereunder he declared the possession of the 1st party/opposite party 1st set, Surendra Nath Pandey and the 2nd party/opposite party 2nd set Ravindra Nath Pandey and others over the plot No. 22 and declared the possession of 2nd party 1st set/opposite party 2nd set over plot No. 37. 2. The proceeding was initiated on the basis of a petition filed by 1st set/opposite party on 11.3.1997 who claimed his exclusive possession over plot Nos. 22 and 37 appertaining to Khata No. 16 on the basis of the entry in the Survey records of rights. The second party 1st set also claimed exclusive possession over both the plots and second set of 2nd party claimed possession over the disputed plots as the joint ancestral property. It appear from the genealogical table given in the petition that Bechu Pandey and Mahadeo Pandey were the common ancestors of both the parties and the dispute is between the branches of late Bechu Pandey and Mahadeo Pandey. It is admitted position that the record of rights of both the plots stood recorded during the revisional survey in the remarks column of the record of rights the possession of Bechu Pandey was entered. It is the case of the 1st party that there was a family arrangement and the disputed land has been coming in his peaceful possession since long and the opposite parties have got no right or concern with the same. 3. The case of the 2nd party 1st set is that the first party and second party second set are in collusion with each other and as a matter of fact the disputed land was recorded in the joint names of Bechu Pandey and Mahadeo Pandey but in possession column the name of Bechu Pandey was recorded in the record of rights of 1925. Thereafter, there was no separation in the family and the disputed land was allotted to the share of Bechu Pandey along with other lands and Bechu Pandey came in exclusive possession over the disputed land and accordingly, his exclusive possession was recorded by survey authority in the possession column. Thereafter, there was no separation in the family and the disputed land was allotted to the share of Bechu Pandey along with other lands and Bechu Pandey came in exclusive possession over the disputed land and accordingly, his exclusive possession was recorded by survey authority in the possession column. The further case of opposite party second set is that they are descendants of Bechu Pandey and they have been possessing the disputed land since long and paying rent in respect therefore which was admitted by 1st party as head of the family during the revisional survey operation and accordingly, objection petition No. 160/1997 filed before the survey authority was allowed without any objection from the 1st party or 2nd party second set. The first party in his show cause filed in the case 348(M) 96 under Section 144 of the Cr. PC admitted the possession over plot No. 37 of the 2nd party/1st set but in the present proceeding he has falsely claimed his possession over both the plots. 4. The members of the 2nd party second set have stated in their written statement that the disputed lands are the ancestral property of all the parties which are coming in their joint possession and there has not been any partition between the parties. It has been stated that there is no question of any breach of peace in respect of the joint property of the parties. So according to them the disputed properties are coming in joint possession of all the parties. 5. It may be stated here that a similar proceeding was initiated prior to the present proceeding and the SDO vide his order dated 17.10.1996 had dropped the proceeding and directed the parties to approach to the Civil Court for adjudication of their rights, title and interest. 6. The learned counsel appearing for the petitioners submitted that the magistrate has committed gross illegality by not considering the documents and affidavits which were filed on their behalf and there is no basis for his coming to the conclusion as stated above. It was next submitted that the magistrate has made out a third case, inasmuch as, he has declared joint possession of the second party second set and first party over the plot No. 22 and declared the possession of second party first set over plot No. 37 which was never the case of any of the parties. It was next submitted that the magistrate has made out a third case, inasmuch as, he has declared joint possession of the second party second set and first party over the plot No. 22 and declared the possession of second party first set over plot No. 37 which was never the case of any of the parties. In this view of the matter, the impugned order passed by the magistrate is illegal. The last submission was that if the magistrate was of the view that both the plots are in joint possession of then he should have dropped the proceeding instead of declaring the possession of any particular party. 7. The learned counsel appearing for the opposite party (1st set) submitted that disputed lands were recorded in the joint names of Bechu Pandey and Mahadeo Pandey and the entry in the remark column of the record of rights will not affect the entry of column No. 2 of Khatiyan where the lands has been recorded in the joint names of Bechu Pandey and Mahadeo Pandey. He also submitted that the property was never partitioned and that it is still joint and in such a situation it will be deemed that disputed property has been coming in joint possession of all the co-sharers. He has relied upon a decision in the case of Sk. Ibrahim V/s. Sk. Salim and others reported in 1982 PLJR 109 wherein it has been held that where the allegation of one of the disputing parties is that he is in joint possession over the lands in question along with other part, the matter has to be taken out from the ambit of Section 145 of the Cr PC. The magistrate is not required to decide such a question. If there be any likelihood of breach of peace on account of such a joint possession, the remedy will surely lie elsewhere. It is, therefore, obvious that on such an allegation a proceeding under Section 145 of the Code should not have been drawn and the same cannot proceed. 8. In the instant case also it is the case of one of the parties that the disputed properties are joint ancestral property over which all the co-sharers are coming in possession. It is, therefore, obvious that on such an allegation a proceeding under Section 145 of the Code should not have been drawn and the same cannot proceed. 8. In the instant case also it is the case of one of the parties that the disputed properties are joint ancestral property over which all the co-sharers are coming in possession. As such, relying upon the aforesaid decision, I am of the view that it was not proper for the magistrate to declare the possession of the parties over the lands, in dispute, which were claimed to be in joint possession to all the parties by one set of the opposite parties. In other words, where one of the party has claimed that the disputed lands are the joint ancestral properties and all the parties are coming in joint possession over the lands in question, the magistrate was not required to decide such a question and should have directed the parties to seek remedy before the appropriate forum. 9. In the facts and circumstances of the case, the impugned order cannot be sustained and the same is quashed. The parties, if so advised, may seek their relief before the competent Civil Court. 10. In the result this revision application is disposed of with the above observation/direction.