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2006 DIGILAW 187 (UTT)

Jas Ram v. Mohan Chandra

2006-04-19

J.C.S.RAWAT

body2006
JUDGMENT: The present revisions have been filed against the judgment dated 26-06-1996, passed by Sri M.M. Kulsresth, the then, Sessions Judge, Pithoragarh, allowing the above Criminal Revisions and quashing the proceedings u/s 145 Cr.P.C. and directing to continue attachment of the disputed property till the competent court determines the rights of the parties with regard to the person entitled to the possession thereof. 2. Brief fact as emerges to this case are that the proceedings u/s 145 Cr. P.C. in respect of the disputed plot started on the report of the Naib Tehsildar, Champawat dated 18-12-1987. It was reported therein that on 14/15-11-1987, the respondents, Mohan Chandra and Govind Chandra dispossessed the revisionist- Jas Ram from the land in dispute and thereafter the S.D.M. passed the preliminary order on 07-01-1988 and proceeded with the case and he finally decided the matter and it was found that the present revisionists were in possession over the disputed property. The said order was challenged before the learned Sessions Judge and the learned Sessions Judge allowed the revision and remanded the said matter to the trial court by directing to the court to give the clearcut findings regarding the possession of the present revisionists as has been provided under the provision of Cr. P.C. Thereafter the S.D.M. separated the three cases and passed a fresh preliminary order on 11-03-1991 and thereafter the parties adduced the evidence. The S.D.M. also directed the matter in favour of the revisionists and the respondents feeling aggrieved by the said order preferred revision before the Sessions Judge. The Sessions Judge while disposing of the revisions observed that the learned Magistrate had failed to record the clearcut findings with regard to the possession over the disputed plot. It was further observed that the matter is lingering since 1987 to till date. The learned Sessions Judge found it appropriate without giving any finding with the apprehension of breach of peace at the spot and directed that the property continued to be remained attached and the parties were directed to move to the competent court. 3. Feeling aggrieved by the said order, the present revision petition has been preferred. 4. The learned Sessions Judge found it appropriate without giving any finding with the apprehension of breach of peace at the spot and directed that the property continued to be remained attached and the parties were directed to move to the competent court. 3. Feeling aggrieved by the said order, the present revision petition has been preferred. 4. Before proceeding this case on merit, it would be appropriate to look into the provisions of Section 145 Cr.P.C. The provision of Section 145 Cr.P.C. clearly reveals that if there is any dispute over the immovable property and there is likelihood to cause breach of peace, then the proceedings u/s 145 Cr.P.C. can be initiated by the Magistrate. For initiating the proceedings u/s 145 Cr.P.C. the dispute is likely to cause breach of peace is sine qua non for initiating a proceedings. Further the Section 145 (4) provides that the parties have been forcibly and wrongfully dispossessed within two months next from before the date on which the report of the 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 the order under sub-section (1). This provision clearly provides that the court while dealing with the proceedings u/s 145 Cr.P.C. is mainly concerned with the possession of the property in dispute on the date of the preliminary order and dispossessed if any within two months prior to the date. The court is not required to decide either the title of the property or right of the possession of the same. 5. In view of the above proposition of law, the matter needs to be scrutinized. The judgment and order passed by the learned Sessions Judge did not disclose as to whether there was any apprehension of breach of peace among the parties with regard to the immovable property. The learned Sessions Judge has decided the proceedings of Section 145 Cr.P.C. as indicated above. The judgment and order passed by the learned Sessions Judge did not disclose as to whether there was any apprehension of breach of peace among the parties with regard to the immovable property. The learned Sessions Judge has decided the proceedings of Section 145 Cr.P.C. as indicated above. The parties have been litigating since 1987 and it is not reported thereafter no dispute arose in between the parties and as such, I am of the view that there is no apprehension of breach of peace among the parties and as such, the initial ingredient of initiating proceedings u/s 145 Cr.P.C. is lacking in this matter and the revision is liable to be disposed of on the same term. 6. It is also revealed from the statement of PW 1- Ramesh Nath, PW2- Lachi Nath, PW3- Ganesh Ram and PW4- Jas Ram that dispossession from the disputed property had been admitted to the revisionists on 14-11-1987. The report which has been proved by PW5- Dhani Ram, Naib Nazir and PW7- Prahlad Ram is also admitted that Jas Ram and Hayat Ram were also dispossessed from the land in dispute. The report of the Naib Tehsildar also corroborates this fact. Admittedly, the second preliminary order in this case was passed on 11-03-1993. Thus it is admitted that the preliminary order was passed after two months of the dispossession of the revisionists. Where a dispossessed person seeks relief u/s 145 Cr.P.C. and the Magistrate passes a preliminary order u/s 145 (1) Cr.P.C. more than two months after such dispossession but by his final order u/s 145 (6) he puts him if possession, the final order cannot be deemed to be a valid order on the ground that the court itself was responsible for the fault committed by the court. In such a case the Magistrate is not justified in treating or empowered to treat the party who had been dispossessed more than two months before the actual date of preliminary order under Section 145 (1) Cr.P.C. is being in possession on the date of his order under proviso (1) to Sub-section (4) of Section 145 Cr.P.C. The above principle has been laid down in AIR 1959 Allahabad (Full Bench) p/141 (V. 46 C 38), Ganga Bux Singh Vs. Sukhdin. Sukhdin. In the instant case, the revisionist has been dispossessed prior to two months from the date of the preliminary order as such, he is not entitled to regain the possession. 7. As I have already discussed above, there is no breach of peace as such, the proceedings u/s 145 Cr.P.C. are not maintainable. 8. The revisions are disposed of accordingly.