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2007 DIGILAW 142 (PAT)

Awadha Bihari Singh v. Brindavan Singh

2007-01-18

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard the parties. 2. The present revision application has been filed by the petitioner, who was second party in a proceeding u/s 145 Cr. P.C. The first party, in whose favour order has been passed, has been noticed and has appeared. 3. Having heard learned counsel for the parties and with their consent this application is being disposed of at the admission stage itself. 4. By the impugned order the learned Executive Magistrate has vacated the earlier order and declared the possession of the opposite party being the first party in the proceedings below. This has been objected to by the petitioner, who was second party on the ground that in the proceedings this court having confirmed the possession of the petitioner it was not open to the Executive Magistrate to rehear and re-determine the possession and thus virtually setting at naught the findings of this court in the same proceedings. 5. On the other hand, the opposite party being the first party .submits that subsequent to the order of this court there was another order of this court in a writ proceeding where the possession of the petitioner was declared to be illegal and forceful. 6. In a proceeding between the opposite party-first party and the petitioner-second party initially the Executive Magistrate decided the possession in favour of first party. This was appealed and the appellate court, reversed the findings and declared the possession of the petitioner-second party. Against this order the first party preferred a revision and the revisional court . again reversed the findings of the appellate court restoring the findings of the Executive Magistrate declaring the possession of opposite party-first party to the proceedings. The petitioner then preferred Cr. Rev. No. 1090 of 2002 before this Court, which was allowed after hearing the parties by order dated 10.8.2004. By the said order the revisional order was set aside restoring the appellate order and holding the revisional courts order to be without jurisdiction. The appellate courts order having been upheld it automatically followed that the possession as declared by the appellate court of the petitioner became final and binding as between the parties. 7. In Sec.145 Cr.P.C. proceedings such findings could only be interferred with or altered by a civil court of competent jurisdiction. For some reasons second party, in whose favour the order was approached, the Executive Magistrate to drop the proceedings. 7. In Sec.145 Cr.P.C. proceedings such findings could only be interferred with or altered by a civil court of competent jurisdiction. For some reasons second party, in whose favour the order was approached, the Executive Magistrate to drop the proceedings. Probably it was intended that order be passed in confirmity with the order of superior court and close the proceedings. However, learned Executive Magistrate, then heard both the parties afresh. At this time in a matter arising out of a consolidation proceedings with regard to legality of sale deed the matter came to this court in C.W.J.C. No. 11131/2000, which was disposed of by this Court on 15.10.2004. The issue was regarding validity of the respective sale deeds in favour of the writ petitioner and the respondent no. 3 (who is the petitioner herein). This Court in the said writ proceedings held that the sale deed in favour of respondent no. 3 was void and ineffectual being in contravention of the Consolidation Act. Respondent No. 3 then pressed into service the order passed in Cr. Rev. No. 1090 of 2002, as referred above, but this court did not upset that order. The court merely declared that as the sale deed of respondent no. 3 (petitioner in the present revision) was void, illegal and unenforceable consequently his possession would be illegal and forceful. 8. This order has been used by the Executive Magistrate now to declare the possession of the first party upsetting the order of this court on this specific issue passed In the proceedings arising from u/s 145 Cr.P.C. It is rightly submitted by the petitioner that such a power did not vest in the learned Executive Magistrate. If at all his power and jurisdiction was only to pass order in consonance with the order of this court passed in the said criminal revision and give effect to that order. He exceeded his jurisdiction in setting aside the order of this court. 9. To my mind this revision application has to succeed. The very fact that in the writ jurisdiction this court held that the possession of respondent no. 3-petitioner herein is illegal and forceful presume the possession of the said person. In a proceeding u/s 145 Cr.P.C. the court does not have to decide the legality of the possession. 9. To my mind this revision application has to succeed. The very fact that in the writ jurisdiction this court held that the possession of respondent no. 3-petitioner herein is illegal and forceful presume the possession of the said person. In a proceeding u/s 145 Cr.P.C. the court does not have to decide the legality of the possession. What it has to decide is as to which party is in possession and had been in possession within two months of the initiation of the proceeding and to restore the possession of such a party, leaving the party to challenge the legality of possession in a court of competent jurisdiction for that purpose. Here the possession or party was declared in a duly instituted proceeding u/s 145 Cr.P.C. and affirmed by this court. So long as the order of this court passed in Cr. Rev. No. 1090/2002 dated 10.8.2004 is not set aside by any court of competent jurisdiction, the order would bind the party and the possession of the petitioner would have to be presumed. 10. So far as the findings of this court in civil writ jurisdiction are concerned, they also presume and assume the possession of the petitioner. The possession of petitioner was merely declared to be illegal and forceful. In my view, the remedy of the opposite party is now to move the court of a competent jurisdiction to get his possession lawfully restored as the possession of the petitioner stands confirmed. Question of title in a proceeding under Sec.145 Cr.P.C. does not decide the possession. 11. In that view of the matter the impugned order dated 5.7.2005 passed in Case No. 635 of 1988/Tr. No. 19 of 1994/ Tr. No. 67 of 2005 by the Executive Magistrate, Sadar, Ara cannot be sustained and is set aside accordingly. 12. This revision application is allowed.