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2005 DIGILAW 645 (RAJ)

Kherdeen v. State of Rajasthan

2005-02-25

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This Criminal Miscellaneous Petition under Section 482 CrPC is directed against the order dated 19.03.2004 passed by Additional Sessions Judge, Anoopgarh ( for short the Revisional Court hereinafter) in Criminal Revision No. 24/2004 "Kherdeen vs. State of Rajasthan and Ors., whereby the Revisional Court set aside the order dated 28.02.2004 passed by Sub Divisional Magistrate, Gharsana (for short the Executive Magistrate hereinafter) in case No. 20/2002 whereby the Executive Magistrate held that the party No.1 petitioner Kherdeen unauthorisedly and foricibly took the possession of the land bearing No. 43/17 mesuing 25 bighas in Chak No. 18 MD and directed that the petitioner be dispossessed from the disputed land and possession of the disputed land be given to respondent No. 2 Mohd Ali and respondent No. 3 Smt. Sammi. Aggrieved by the order of the Executive Magistrate, the petitioner filed a revision petition before the Revisional Court. The Revisional Court allowed the revision petition, set aside the order of Executive Magistrate dated 28.02.2004 and remanded the matter to the Executive Magistrate to decide afresh after affording the opportunity of hearing to the parties keeping in view proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure (for short the Code hereinafter). Aggrieved by the order of the Revisional Court, after having availed one revision, the petitioner filed the instant criminal miscellaneous petition. 2. I have heard learned Counsel for the parties. Perused the order impugned and the relevant materials. 3. It is contended by the learned Counsel for the petitioner that with regard to the land in dispute, both the parties have been litigating in civil and revenue Courts and therefore, instead of proceeding under Sections 145 and 146 CrPC, the Executive Magistrate could have proceeded under Section 107/116 CrPC. He has relied on a decision of this Court in Sua Lal vs. Anandi Devi , reported in 1998 (1) RCrD 222. 4. He has relied on a decision of this Court in Sua Lal vs. Anandi Devi , reported in 1998 (1) RCrD 222. 4. Learned Counsel appearing for the contesting respondents submits that though the parties are litigating before the civil Court as well as before the revenue Court and the contesting respondents had been in possession of disputed land for a long period, but before initiating proceedings under Section 145 CrPC, within two months, the petitioner dispossessed the respondents No. 2 and 3 and forcibly took the possession and therefore, there being an imminent danger of breach of peace relating to possession of the land in dispute as also the apprehension of breach of peace existed, therefore, the SHO, Police Station, Gharsana filed a complaint before the Executive Magistrate under Sections 145 and 146 CrPC. Since, the apprehension of breach of peace existed on the date of filing of complaint, therefore, the proceedings under Sections 145 and 146 CrPC are maintainable. Learned Counsel for the respondents has relied on a decision of Honble Supreme Court in Prakash Chand Sachdeva vs. State,reported in 1994 (1) SCC 471 . 5. The facts and circumstances giving rise to the instant petition are that originally land in dispute was owned and possessed by Ameerbux, father of the petitioner and respondent No. 3 Musammat Sammi, unmarried daughter of Ameerbux. During the life time of Ameerbux, he executed a Will and by this Will, the land measuring 12.10 bigha came in the share of his daughters Sharifa, respondent No. 3 Sammi, Khatun andMariyam. Respondent No. 2 Mohd Ali is husband of Mariyam. A criminal case was lodged by the petitioner against the afore-noticed persons in whose favour Will is alleged to have been executed by Ameerbux. The petitioner also filed a revenue suit before Sub-Divisional Magistrate, Raisinghnagar being Suit No. 27/90 with regard to the land in question for cancellation of the Will, which came to be dismissed on 212.1990. The petitioner again filed a civil suit being Suit No. 116/90 for Cancellation of the Will dated 04.04.1987 which also came to be dismissed on 14.07.1993 . Against the order dated 14.07.1993, the petitioner filed an appeal before the Revenue Appellate Authority being Appeal No. 32/93 which also came to be dismissed on 211.1994. The petitioner again filed a civil suit being Suit No. 116/90 for Cancellation of the Will dated 04.04.1987 which also came to be dismissed on 14.07.1993 . Against the order dated 14.07.1993, the petitioner filed an appeal before the Revenue Appellate Authority being Appeal No. 32/93 which also came to be dismissed on 211.1994. Against the Judgment dated 211.1994, the petitioner preferred second appeal before the Board of Revenue being Appeal No. 20/95 which also came to be dismissed on 012.1996. The mutation of the land stood in favour of the respondents No. 2 and 3. Challenging the mutation of the land in question, the petitioner filed appeal for cancellation of mutation 17.03.1989 being Appeal No. 50/2000 before Additional Collector, Suratgarh Camp Anoopgarh, which came to be allowed ex-parte by the Judgment dated 22.09.2000. Against the Judgment dated 22.09.2000, the respondents preferred appeal before the Divisional Commissioner, Bikaner, and the ex-parte order of the Additional Collector dated 22.09.2000 was stayed. However, upon hearing the parties, the appeal filed by the respondent was allowed vide order dated 20.11.2001. The matter was carried to Board of Revenue by way of Revision No. 89./2001. The said revision petition was allowed in favour of the respondents vide order dated 08.04.2003. Thereafter, the petitioner filed a civil suit before the Civil Judge (Junior Division), Anoopgarh for declaration and delivery of possession of land Murabba No. 43/17 in Chak No. 8 MD Measuring 25 bighas. The petitioner tried to forcibly take possession of the land in question, for which a criminal case was lodged against him by the respondents. After investigation, police filed challan against the petitioner for the offences under Sections 447, 427, 147, 148 and 149 IPC. The suit filed by the petitioner before the Civil Judge seeking declaration and delivery of the possession is still pending. However, reply has been filed by the respondents in the said suit. At the time of filing of the suit, admittedly, the petitioner was not in possession and therefore, he sought the relief of declaration and possession. However, during the pendency of the suit, the petitioner forcibly took the possession of the land in dispute and therefore, in order to abandon the relief of possession, filed an application under Order 6 Rule 17 CPC for amendment to the plaint. However, during the pendency of the suit, the petitioner forcibly took the possession of the land in dispute and therefore, in order to abandon the relief of possession, filed an application under Order 6 Rule 17 CPC for amendment to the plaint. The SHO Gharsana on finding that both the parties are bent upon to posses or dispossess the land in dispute for which there was apprehension of breach of peace, filed a complaint under Sections 145 and 146 CrPC. From the facts noticed above, it appears that the petitioner was initially not in possession of the land and therefore, he filed a civil suit for declaration and possession. Even before the Revenue Court, he had been unsuccessful up to the Board of revenue. Finding the situation that he had been unsuccessful in the litigation before the revenue Court and the civil Court, it is alleged that he forcibly took the possession of the land which is cause of apprehension of breach of peace and the concerned SHO finding that the parties are bent upon to cause breach of peace with regard to the land in dispute, the complaint was filed. The Executive Magistrate after holding enquiry came to the conclusion that the respondents were in possession and the petitioner forcibly took the possession and therefore, directed the petitioner to hand over the possession to the respondents. However, the revisional Court came to the conclusion that the trial Court has not taken into consideration the proviso to Sub-section (4) of Section 145 and remanded the matter to the Executive Magistrate to decide afresh keeping in view the proviso to Sub-section (4) of Section 145 of the Code. Section 145 CrPC provides procedure where dispute concerning land or water is likely to cause breach of peace. Section 145 CrPC provides procedure where dispute concerning land or water is likely to cause breach of peace. Sub-section (1) & (4) of Section 145 CrPC reads as under:- Section 145(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof , within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (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, pursue the statements so put 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 Sub-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 dispossessed, within two months next before the date on 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). 6. 6. In Sua Lals case (Supra), this Court followed the view taken in Tikuda vs. State, 1961 RLW 469 wherein it was held that where a competent Court is already seized of a dispute with regard to a property, which is also the subject matter of dispute under Section 145 CrPC, the likelihood of the apprehension of breach of peace, if any, may be effectively and properly controlled by the concerned authority by taking re-course to the provisions of Section 107/116 CrPC and the proceeding under Section 145 CrPC should not be initiated which cases as that would simply amount to duplicacy or plurality of the proceedings. 7. In the instant case, right from the life time of Ameerbux, the father of the respondent No. 3, by virtue of a Will, the respondent No. 3 Mst. Sammi, Sharifa, Khatun and Mariyam came in possession of the land in dispute. The respondent No. 2 Mohd. Ali is husband of Mariyam. They continued to be in possession for a long time which is evident from the fact that petitioner filed a suit before Civil Judge (Junior Division) Anoopgarh seeking declaration and delivery of the land in question. The said suit was filed on 05.07.1997 being Civil Suit No. 93/97. Thus, on the filing of the said civil suit, admittedly, the petitioner who is plaintiff in the civil suit was not in possession and therefore, he after having been unsuccessful before the Revenue Court as noticed above and even not getting any interim order by the Civil Court, restored to forcibly dispossess the respondents which necessitated initiation of the proceeding under Sections 145 and 146 CrPC . 8. In Prakash Chand Sachdeva vs. State (Supra) their Lordship observed as under:-"True, a suit or remedy in civil Court for possession or injujction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant vs. State of U.P. reported in (1985) 1 SCC 427 particularly when possession is being examined by the civil Court and partiers are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The normal rule is as stated by the Court in Puri case. But that was a suit based on title. And that could be decided by civil Court only.That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 CrPC. Neither the High Court nor the Sub-Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under Section 107 are for public peace and tranquility whereas those under Section 145 relate to disputes regarding possession between parties concerning any land or water or boundaries thereof . Therefore, dropping of proceedings under Section 107 could not furnish foundation for dropping the proceedings under Section 145. Nor the law laid down in Puri case could result in rejecting the application filed under Section 145 of the CrPC. There being no dispute of title between the appellant and respondent the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained." 9. Thus, the Apex Court held that in such situation, the Magistrate instead of deciding crucial question that if the appellant therein had been forcibly or wrongfully fully dispossessed within two moths next before the date on which the information was received by the Magistrate, was not proper in dropping the proceedings. and therefore, the orders passed by the Courts below therein were held to be not sustainable. 10. and therefore, the orders passed by the Courts below therein were held to be not sustainable. 10. In view of the decision of the Honble Supreme Court referred to herein above, the Judgment relied on by the learned Counsel for the petitioner in Sua Lals case (Supra) is of no help. 11. In my view, the order of remand cannot be said to be erroneous from the facts as discussed herein above and from the various Judgment s of the Revenue Court as well as orders passed by Civil Court in the suit filed by the petitioner, it appears that the petitioner had not been in possession of the land in dispute and he had been unsuccessful before civil and revenue Courts and the fact that petitioner filed a civil suit for declaration and possession clearly shows that the right from beginning, the petitioner was not in possession of the land in dispute, however, since the matter has been remanded to the Executive Magistrate without commenting on the merits of the case, in my view, the order of remand does not suffer from any erroror illegality. More so, the petitioner has already availed one revision before the Additional Sessions Judge and in garb of petition under Section 482 CrPC seeks to avail second revision which is barred by Section 397 (3) of the Code. However, the powers of this Court to do the complete justice are protected by Sections 482 and 483 CrPC, where the Court comes to the conclusion that to prevent miscarriage of justice or in exceptional cases even after availing the first revision, the petition under Section 482 CrPC can be considered. Keeping in view the facts of the instant case, the case in hand is not at all of nature that in the event of non interference it would result in manifest injustice or would result in miscarriage of justice. In the circumstances therefore, no case for interference is made out. Consequently, the criminal miscellaneous petition fails and is hereby dismissed.