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2004 DIGILAW 593 (JHR)

Lal Mohammad Shaikh v. Mustaque Shaikh

2004-06-21

M.Y.EQBAL

body2004
JUDGMENT : M. Y. Eqbal, J.- In the instant application under Section 482 Cr. P.C. the petitioners have prayed for quashing the order dated 7.2.2002 passed by the Additional Sessions Judge, Pakur in Criminal Revision No. 71/33 of 2000 whereby he has set aside the order dated 2.6.2000 passed by the Executive Magistrate, Pakur in Criminal Miscellaneous Case No. 625 of 1992 declaring possession of the petitioners under Section 145 Cr.P.C. and remanded the matter for passing fresh order. 2. The land in dispute is situated in Mauza Satrukhi bearing Khesra No. 177, Zamabandi No. 133 measuring total area of 21 Bigha, 12 Katha and 11 Dhurs. The disputed land was recorded as "Anabadi'. Subsequently because of diversion of direction of the river, the land became agricultural land and some part of the land was said to have been settled with different persons by the Sub Divisional Officer, Pakur in the year 1980-81. The petitioner's case is that the land in dispute was purchased from the settlee by registered sale deed and delivery of possession was effected. On the other hand the case of the opposite parties is that portion of the land was settled in their favour by the Sub Divisional Officer, Pakur in 1985 and subsequently possession was delivered in their favour. 3. In 1992 a proceeding under Section 144 Cr. P.C. was initiated in the Court of Sub Divisional Officer, Pakur being Criminal Miscellaneous No. 244 of 1992 at the instance of the opposite party and the same was decided in favour of the petitioner vide order dated 10.8.1992. Subsequently proceeding under Section 145 Cr.P.C., was initiated on the application of the opposite parties being Criminal Miscellaneous Case No. 625 of 1992 and the Executive Magistrate by order dated 2.6.2000 declared possession in favour of the petitioners. The said order dated 2.6.2000 was challenged by the opposite parties by filing Criminal Revision being Criminal Revision No. 71/33 of 2000. The Additional Sessions Judge by order dated 7.2.2002 set aside the order dated 2.6.2000 passed by the Executive Magistrate and remanded the matter for fresh order. The order dated 7.2.2002 passed by the Additional Sessions Judge is the subject matter of this application under Section 482 Cr.P.C. 4. The Additional Sessions Judge set aside the order of the Executive Magistrate on the sole ground that procedure of Section 145(4) Cr. P.C. has not been strictly complied with. The order dated 7.2.2002 passed by the Additional Sessions Judge is the subject matter of this application under Section 482 Cr.P.C. 4. The Additional Sessions Judge set aside the order of the Executive Magistrate on the sole ground that procedure of Section 145(4) Cr. P.C. has not been strictly complied with. In other words the Magistrate has not in express word held as to which party was in possession at the date when proceeding under Section 145 was initiated. 5. I have heard learned counsel appearing for the parties at length and also peruse the record of the proceeding called for from the court of Sub-Divisional Magistrate. 6. The only question that falls for consideration is whether in the facts of the instant case the impugned order passed by the Additional Session Judge setting aside the order passed under Section 145 Cr.P.C. and remanding the matter for fresh decision suffers from illegality and amounts to erroneous exercise of jurisdiction. 7. From perusal of the record the admitted facts which emerge are that on 19.6.1992 a proceeding under Section 144 Cr. P.C. was drawn up on the basis of petition filed by the opposite parties in the court of Sub Divisional Magistrate, Pakur at Sahebganj being Criminal Miscellaneous no. 254/92. The said proceeding was finally disposed of by a well reasoned order dated. 10.8.1992. The operative portion of the order passed by the Sub Divisional Magistrate reads as under: "From the insight survey of the documents of the parties concerned, I am of the opinion that the first party has no concern with the lands in question. The claims of the second party are fully substantiated by proper documents. Hence I hold that view that if there exists any apprehension of the breach of the peace it exists from the side of the first party members and it does not exist from the side of the second party members. It is therefore, ordered that the rule is made absolute against the members of the first party and the same is vacated in favour of the members of the second party." 8. It is therefore, ordered that the rule is made absolute against the members of the first party and the same is vacated in favour of the members of the second party." 8. The aforesaid order was not challenged by the opposite parties (first parties in the proceeding) against whom rule was made absolute rather the opposite parties after sometime filed a fresh petition before the Sub Divisional Magistrate, Pakur for drawing up a proceeding under Section 145 Cr.P.C. In the said petition the opposite party reiterated that the land in dispute was settled with them and they have cultivated the land. It was further alleged that the members of the second party are litigant persons and they may create troubles at the time of harvestation of paddy crop from the land in question. The said application was registered as Criminal Miscellaneous No. 625 of 1992 and the Sub Divisional Magistrate drawn up a proceeding under Section 145 Cr. P.C. against both the parties and notices were issued. After four days i.e. on 16.11.1992 the opposite parties filed another application alleging that the second party members are ready to harvest the paddy and therefore, there is urgency for attachment of the land and crops. The Sub Divisional Magistrate on the same day without hearing the second parties (petitioner herein) passed the order of attachment under Section 146(1) Cr. P.C. It further transpires from the record that when the petitioner (second party) came to know about the aforesaid proceeding they appeared and filed application stating the entire facts that first party got a proceeding under Section 145 initiated by suppressing the earlier proceeding in which final order was passed on 10.8.1992. The Sub Divisional Magistrate after hearing both the parties found that there was no imminent danger of continuing attachment and accordingly the order was recalled. The Sub Divisional Magistrate thereafter allowed the parties to lead evidence in support of their case of possession and after considering the entire evidence and also the order passed in the earlier proceeding under Section 144 Cr. P.C. came to the conclusion that it is the second petitioner who has been in possession of the land in question. Accordingly the Sub Divisional Magistrate declared possession of the second party over the land. 9. The Additional Sessions Judge in revision failed to take notice of all these facts including the earlier proceeding under Section 144 Cr. P.C. came to the conclusion that it is the second petitioner who has been in possession of the land in question. Accordingly the Sub Divisional Magistrate declared possession of the second party over the land. 9. The Additional Sessions Judge in revision failed to take notice of all these facts including the earlier proceeding under Section 144 Cr. P.C. in which rule was made absolute against the opposite parties. As noticed above in the application dated 11.11.1992 filed by the first party (opposite parties herein) before the Sub. Divisional Magistrate on the basis of which the instant proceeding under Section 145 Cr.P.C. was drawn up, it was alleged by the opposite parties that either they may be dispossessed or the second parties are bent upon to take forcible possession of the land in dispute. The only allegation made is that they cultivated the land and the second parties may harvest the paddy. 10. Sub Section (4) of Section 145 reads as under: "Section 145 (4):- The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, the statements was to be in, hear the parties receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary and,• if possible, decide whether any and which of the parties was, at the date of the order made by him under Section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully disposed within two months next before the date of which the report of a Police Officer or other information' was received by the Magistrate, or after that date and before the date of his order under Sub Section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub Section (1). 11. From bare perusal of the aforesaid provision it is manifest that if a case of wrongful dispossession is made out by the person at whose instance a proceeding under Section 145 Cr. 11. From bare perusal of the aforesaid provision it is manifest that if a case of wrongful dispossession is made out by the person at whose instance a proceeding under Section 145 Cr. P.C. is drawn up then the Magistrate while passing final order treat such party so dispossessed as if the party had been in possession on the date of his order under Sub Section(1) of Section 145 Cr.P.C. Admittedly proviso of Sub Section (4) does not apply in the instant case. As noticed above the Sub Divisional Magistrate while passing final order under Section 145 Cr. P.C. has taken notice of the order dated 10.8.1992 passed in the earlier proceeding under Section 144 Cr. P.C. where the order was made absolute against the opposite parties. The Sub Divisional Magistrate has categorically recorded a finding that the petitioners (Second parties of the proceeding) have been in possession of the land in dispute. 12. In my considered opinion in the facts of the instant case merely because the Magistrate in express word has not said about possession of the petitioner on the date when order under Sub Section (1) was passed, it cannot be held that the impugned order of the Magistrate is bad in law. 13. For the reasons aforesaid this application is allowed and the impugned order passed by the Additional Sessions Judge is quashed. Consequently the order passed by Sub-Divisional Magistrate is restored.