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2002 DIGILAW 1778 (RAJ)

NARAYANI DEVI v. STATE OF RAJASTHAN

2002-10-29

H.R.PANWAR

body2002
Judgment H. R. PANWAR, J. ( 1 ) THIS criminal miscellaneous petition under Section 482 Cr. P. C. is directed against the order dated 29th June, 1996 passed by Additional Sessions Judge No. 1, Sri Ganganagar (hereinafter referred to as the revisional court) whereby the revisional court allowed the revision petition filed by non-petitioner No. 2 Hanuman Prasad against the order dated 21st July, 1994 passed by Civil Judge (Junior Division) and Judicial Magistrate, Sri Ganganagar (hereinafter referred to as the trial court) whereby the trial court allowed the application filed by Petitioner Narayani Devi seeking restoration of possession of land in dispute. ( 2 ) BRIEFLY stated facts to the extent they are relevant and necessary for the decision of this criminal miscellaneous petition are that Smt. Gayatri Devi, wife of non-petitioner No. 2 Hanuman Prasad filed an application against her husband non-petitioner No. 2 under Section 125 Cr. P. C. seeking maintenance. The trial court allowed the application for maintenance at the rate of Rs. 300/- per month in favour of Gayatri Devi. Non-petitioner No. 2 Hanuman Prasad failed to pay the maintenance and in order to execute the order of maintenance the trial court attached the land recorded in the name of Hiralal father of non-petitioner No. 2 Hanuman Prasad measuring 23 bighas. Hanuman Prasad denied title to the land in the said proceedings and came out with the case that the land sought to be attached was given to petitioner Narayani Devi by Hiralal for her maintenance soon after the allotment was made in favour of Hiralal and, therefore, it was stated that Narayani Devi is cultivating and in possession of the land by grant. Non-petitioner No. 2 denied the possession and title to the land in question. However, the land in question was attached by the order of the trial court and a receiver was appointed. Thus, the land in question came in custody of receiver. During the pendency of the application under Section 125 Cr. P. C. , Smt. Gayatri Devi expired and the proceeding under Section 125 Cr. P. C. came to an end. The possession of land in question was sought to be restored to the person from whom the receiver took the possession. An application was filed by the petitioner before the trial court seeking direction to receiver Tahsildar Rawatsar to restore the possession of the land in her favour. P. C. came to an end. The possession of land in question was sought to be restored to the person from whom the receiver took the possession. An application was filed by the petitioner before the trial court seeking direction to receiver Tahsildar Rawatsar to restore the possession of the land in her favour. Non-petitioner No. 2 Hanuman Prasad contested the said application. By impugned order dated 21st July, 1994, the trial court allowed the application filed by the petitioner and directed that the possession of the land attached shall be delivered to the petitioner. ( 3 ) AGGRIEVED by the order of the trial court non-petitioner No. 2 Hanuman Prasad filed a Criminal Revision Petition No. 36 of 1994 before the revisional court. By order impugned dated 29th June, 1996, the revisional court allowed the application filed by non-petitioner No. 2 and set aside the order of the trial court dated 21st July, 1994 and directed to handover the possession of the land in question to non-petitioner No. 2 Hanuman Prasad. Aggrieved by the order of the revisional court, the petitioner has filed the present criminal miscellaneous petition. ( 4 ) I have heard learned counsel for the parties. Perused the order of the trial court as well as of the revisional court and the record of the case. ( 5 ) IT is contended by learned counsel for the petitioner that originally land in question was allotted to Hiralal. The said land was given to the petitioner by Hiralal in the year 1971 for her maintenance as the petitioner is niece of Hiralal. This fact has amply been established from the record of the trial court. , inasmuch as non-petitioner No. 2 himself admitted this fact in the reply filed before the trial court in maintenance proceedings. It was further contended that non-petitioner No. 2 filed an affidavit before the trial court wherein he deposed on oath that the land in question was allotted to Hiralal and after allotment, he had given and transferred the said land to the petitioner who is niece of Hiralal including title and ownership. Hiralal was in government service and expired on 24/9/1976. Because of sudden death of Hiralal the land in question could not be recorded in favour of the petitioner in revenue records. Hiralal was in government service and expired on 24/9/1976. Because of sudden death of Hiralal the land in question could not be recorded in favour of the petitioner in revenue records. Whereas, since allotment of the land in the year 1971, the petitioner was in possession of the land in question and she only has been cultivating the said land. Non-petitioner No. 2 also deposed on oath that his father Hiralals last will was that the land in question shall be recorded in the name of the petitioner. The deponent also stated that neither he nor any of his family member had any objection if the land is recorded in the name of the petitioner as she is in possession of the land. A copy of the said affidavit is on record. ( 6 ) LEARNED counsel for the petitioner further contended that on being appointed receiver, Tahsildar Rawatsar took possession of the land from the petitioner, which is evident from report of Patwari and statements of witnesses. Thus, the entire record shows that the land in question was regularly being cultivated by the petitioner and she was the only person in possession of the land till the said land was taken in possession by the receiver. Non-petitioner No. 2 Hanuman Prasad had never been in possession of the land, more particularly when the receiver took the possession of the land, therefore, he contended that on coming to an end of the maintenance proceedings the best person entitled for possession of the land in question is the petitioner. ( 7 ) LEARNED counsel for non-petitioner No. 2 contended that since the land stands recorded in the name of his father Hiralal and after his death in the year 1976, the petitioner being his son is best person entitled for possession of the land, after the maintenance proceedings came to an end. He supported the judgment of revisional court. ( 8 ) I have given my thoughtful consideration to the rival submissions made at the bar and carefully gone through the record. Indisputably, originally the land in dispute was allotted to Hiralal. Indisputably, the petitioner is niece of Hiralal who was a government employee. Allotment of the land was made in his favour in the year 1971. ( 8 ) I have given my thoughtful consideration to the rival submissions made at the bar and carefully gone through the record. Indisputably, originally the land in dispute was allotted to Hiralal. Indisputably, the petitioner is niece of Hiralal who was a government employee. Allotment of the land was made in his favour in the year 1971. The said land was given and transferred including its ownership in favour of the petitioner soon after it was allotted to Hiralal and it is only petitioner who had been cultivating the land in question, which is evident from revenue records and water slip charges. Water charges was paid by the petitioner for the irrigation of the said land from the record, it nowhere shows that non-petitioner No. 2 Hanuman Prasad ever remained in possession of the land and cultivated the land in question. In the maintenance proceedings the stand taken by the non-petitioner No. 2 clearly goes to show that after the allotment of the land in favour of Hiralal the said land was given to the petitioner for her maintenance and Hiralal being government employee did not cultivate the land in his lifetime and the petitioner is cultivating the land in question. The affidavit filed by non-petitioner No. 2 speaks in clear terms that even his father Hiralals last will was that the land in question be recorded in revenue records in favour of the petitioner. The various documents available on record show that the petitioner had been cultivating the land and was in possession since 1976 till date. Even after the order of revisional court the possession of the land remained with the petitioner by interim order dated 19/7/1996 of this Court. Thus, eventually the petitioner is in possession of the land in question for over 30 years. On coming to an end of the maintenance proceedings before the trial court the land which was attached under the said proceeding was to be released from the attachment. Thus, eventually the petitioner is in possession of the land in question for over 30 years. On coming to an end of the maintenance proceedings before the trial court the land which was attached under the said proceeding was to be released from the attachment. It was not the matter before the trial court to have gone into the title of the land as before the trial court there was only the maintenance proceeding between Smt. Gayatri Devi and non-petitioner No. 2 and question of title of land so attached had never been subject matter of the proceeding before the trial court and, therefore, on coming to an end of said maintenance proceeding the trial court was required to restore the possession of land to the party from whom it was taken at the time of attachment. At the time of appointment of receiver the land in question was in possession of the petitioner and the receiver took possession of the said land from the petitioner. In my considered opinion, the trial court was fully justified to restore the possession of the land in question to the petitioner. The revisional court had a limited jurisdiction while deciding the revision petition. While deciding the revision petition the revisional court went on as if it was deciding the title suit and in my view, the revisional court exceeded its limited jurisdiction of the revision. ( 9 ) LEARNED counsel for non-petitioner No. 2 Hanuman Prasad further contended that initially the land in question was attached by the trial court vide order dated 21/7/1994 by exercising its power under Section 421 (1) Cr. P. C. The land was in posse-ssion of Narayani Devi and the crops tanding thereon was owned by Narayani Devi and, therefore, the petitioner was in possession of the land. That order was challenged by way of revision by the non-petitioner No. 2 before the revisional court. The revisional court reached to the conclusion that the land is in possession of the petitioner and has been cultivated by her and the crops standing thereon also belongs to her and she was allowed to yield the crops. That order was challenged by way of revision by the non-petitioner No. 2 before the revisional court. The revisional court reached to the conclusion that the land is in possession of the petitioner and has been cultivated by her and the crops standing thereon also belongs to her and she was allowed to yield the crops. But in the said revision the revisional court observed that non-petitioner No. 2 Hanuman Prasad being son of original allottee Hiralal being legal heir of Hiralal has right to the said land and, therefore, it was contended that the rights of the parties have been determined while deciding the said revision. In Criminal Revision No. 49 of 1995 filed by the petitioner, it was observed that it was only a question whether the maintenance awarded by the trial court can be realised as levy of the fine by issuing warrant to the Collector of the district directing him to realise the amount as arrears of land revenue from movable or immovable property or objection if any of the defaulter. Neither of the parties joined the issue by pleading their right of possession nor the evidence was led by either of the parties and, therefore, inspite of adverse finding in earlier criminal revision, the finding cannot be treated as resjudicata as it was purely incidental or Auxiliary or collateral to the main issue. ( 10 ) IN Gram Panchayat of Village Naulakha v. Ujagarsingh and others, the Honble Supreme Court held that the earlier suit decided by the respondent against panchayat was only a suit for injunction and no question of title was gone into and decided. The said decision cannot be bound on the question of title. Thus, in this view of the matter, any observation made by the revisional court in earlier revision is incidentally or collaterally made and cannot bind on the parties. So far as issue of title is concerned, title and possession of suit can only be decided by civil court on an appropriate civil suit seeking declaration of title and possession which may involve many questions including the point of limitation and such questions cannot be decided in the present proceedings. So far as issue of title is concerned, title and possession of suit can only be decided by civil court on an appropriate civil suit seeking declaration of title and possession which may involve many questions including the point of limitation and such questions cannot be decided in the present proceedings. In the instant case, possession of the land was takenover by the receiver in pursuance of the order of the trial court which is primarily an administrative act and there was no judicial determination of the rights of the parties. In normal course when the order of appointment of receiver is set aside or withdrawn without determination of the rights of the parties then in such an eventuality the person entitled to restoration of possession i. e. the person from whom the possession was taken over by the receiver, if any of the parties have any claim with regard to title of the property or right to possess then the remedy is by way of civil suit. In this view of the matter, the order impugned of the rivisional court dated 29/6/1996, in my opinion cannot be sustained and is to be setaside. No other point was argued. In the result, this criminal misc. petition is allowed and the order impugned of the revisional court dated 29/6/1996 is setaside and that of the trial court dated 21/7/1994 is restored. Petition allowed.