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Madhya Pradesh High Court · body

2010 DIGILAW 333 (MP)

JAIPAL v. SHRI RAM

2010-03-18

K.S.CHAUHAN

body2010
JUDGMENT : 1. Criminal Revision No. 812/1997 and M.Cr.C. No. 5990/1997 arise out of the same order hence being disposed of by common order. 2. The aforesaid Criminal Revision and M.Cr.C. have been preferred being aggrieved by order dated 20-8-1997 passed by Additional Sessions Judge, Panna in Criminal Revision No. 61/96 arising out of the order dated 9-10-1996 passed by S.D.M., Ajaygarh, District Panna in Criminal Case No. 374/1995 under section 145 of Criminal Procedure Code. 3. The brief facts of the case are that a criminal complaint under section 145 of Criminal Procedure Code has been filed by State of M. P. at Police Station Dharampur against party No. 1 Jaipal and Rameshwar Lodh (now deceased) and against party No. 2 Shri Ram, Shiv Prasad, Raja Bhaiya and Girja Bai before the S.D.M., Ajaygarh, District Panna on 19-12-1995. It has been stated in the complaint that both the parties are claiming their possession on the disputed land bearing Khasra Nos. 210, 248/1, 248/2, 276/1, 301/1, 302/22, 578, 595, 621, 622, 646, 647, 655 total area 3.223 hectares situate at Village Nayagaon (Lami), Tahsil Ajaygarh, District Panna and there is every likelihood of breach of peace, therefore, necessary action be taken and the property be attached. 4. The S.D.M., Ajaygarh being satisfied that there is likelihood of breach of peace passed preliminary order under section 145(1) of Criminal Procedure Code on 13-12-1995 directing the parties to attend his Court on 23-12-1995 and putting their written statement of respective claims in respect of actual possession of the land in dispute. On 2-3-1996 wireless message was received from S.H.O. Dharampur that both the parties are ready to harvest the crops and there is possibility of the serious incident, therefore, the crop be attached. Being satisfied S.D.M. passed the order on 7-3-1996 under section 146 of Criminal Procedure Code for attachment of land/crop. By order of S.D.M. the property was attached and given on Supurdnama to Maiyadeen on 10-3-1996. Party No. 2 filed revision in the Sessions Court which was dismissed on 25-5-1996 and direction was made to dispose of the matter within a month. 5. Both the parties filed written statement and adduced evidence. Party No. 1 Jaipal and Rameshwar examined themselves and also two witnesses Badri and Jagnandan Prasad. Party No. 2 Shri Ram examined himself and also two witnesses Jagprasad and Bhurelal Lodh. Documents were also filed. 5. Both the parties filed written statement and adduced evidence. Party No. 1 Jaipal and Rameshwar examined themselves and also two witnesses Badri and Jagnandan Prasad. Party No. 2 Shri Ram examined himself and also two witnesses Jagprasad and Bhurelal Lodh. Documents were also filed. The arguments were heard. The order was passed on 9-10-1996. It was found that party No. 1 Jaipal and Rameshwar were in possession of the disputed lands prior to two months of the dispute, therefore, directed party No. 2 not to interfere in the possession of the party No. 1. Supurddar Maiyadeen was also directed to handover the possession of the land and crops to party No. 1. It was also directed that the party No. 1 be retain the possession of the disputed property until evicted therefrom in due course of law. Being aggrieved by the order passed by S.D.M. party No. 2 Shri Ram and others preferred Criminal Revision No. 61/1996 which was decided on 20-8-1997. The revision was partly allowed. The order passed by S.D.M. was set aside and the direction was made for giving the disputed property on supurdnama to an impartial person. It was also directed that the parties may file the civil suit if they so desired. It is the impugned order against which the instant revision has been filed by the party No. 1. Party No. 2 also filed M.Cr.C. being aggrieved by that part of order by which the property is directed to be given on supurdgi and direction to file civil suit. 6. Shri Uma Kant Sharma, learned Senior Counsel appearing on behalf of Jaipal and others submitted that S.D.M. Ajaygarh has rightly given the finding regarding the possession of Jaipal and Rameshwar. The revisional Court has not considered the documents and evidence in proper perspective. The revisional Court was having no jurisdiction to re-appreciate the evidence. The findings and conclusions of the revisional Court are perverse in law and deserves to be set aside. 7. On the contrary, Shri R. K. Samaiya, learned counsel appearing on behalf of Shri Ram and others supported the impugned order to the extent of finding that party No. 2 was in possession of disputed property but assailed that the revisional Court has committed an illegality in not directing the property to be given to party No. 2 and to be given on supurdgi to an impartial person. Learned counsel further submitted that the Court below has committed an illegality in directing the filing of civil suit. The part of that order under challenge deserves to be set aside and the direction be made to give disputed property to party No. 2. In support of his contention he has referred the following decisions :- (i) R. C. Patuck vs. Fatima A Kindasa and others, AIR 1997 SC 2320 , (ii) Ujagar Singh vs. Nanhe Singh, 1992(1) MPWN S.N. 83, (iii) Azmal Khan vs. Rahmatulla, 1987(2) MPWN S.N. 64. 8. Considered the rival contentions raised by the learned counsel for the parties. 9. The main point for consideration is that whether Court below has committed an illegality in setting aside the order of SDM, Ajaygarh and directing the property to be given on supurdgi to an impartial person. 10. On perusal of record it reveals that the disputed lands bearing Khasra Nos. 210, 248/1, 248/2, 276/1, 301/1, 302/22, 578, 595, 621, 622, 646, 647, 655 total area 3.223 hectares are situated at Village Nayagaon (Lami), Tahsil Ajaygarh, District Panna. Both the parties claimed their possession on the disputed lands. There was apprehension of breach of piece, therefore, the concerned police filed the complaint before the S.D.M. Ajaygarh. Both the parties filed the written statements, adduced the evidence oral and documentary. On appreciation of evidence S.D.M. found party No. 1 Jaipal and others in possession before two months of the dispute but the revisional Court gave the reverse finding. 11. According to party No. 1 the disputed land is ancestral and, therefore, they also have the share in it but the land was mutated in the name of Govindram. His brother Vishwanath and Rameshwar were also having share in it. It is apparent that the land was mutated in the name of Govindram and after his death to his legal heirs (party No. 2). The party No. 1 has not taken any steps or partition and allotment of share at that time. There is no material on record to the effect that this land was ever partitioned between the parties. It is apparent that Rameshwar and others instituted Civil Suit No. 33A/92 in the Court of Civil Judge Class-II, Ajaygarh and prayed for issuance of the permanent injunction against Shri Ram and others for restraining them not to interfere in their possession. The injunction was refused on 20-7-1993. It is apparent that Rameshwar and others instituted Civil Suit No. 33A/92 in the Court of Civil Judge Class-II, Ajaygarh and prayed for issuance of the permanent injunction against Shri Ram and others for restraining them not to interfere in their possession. The injunction was refused on 20-7-1993. They were not found in possession of the disputed land. The plaintiffs preferred Appeal No. 25/93 before the Additional District Judge, Panna but the same was not traced hence dismissed on 31-1-1995. Thus it is manifestly clear that plaintiffs Rameshwar and others were not found in possession of the disputed lands by the Civil Court. It has not been brought on record that thereafter how and when party No. 1 came into possession of disputed land. S.D.M. has not considered this aspect and ignoring the proceedings of Civil Court found party No. 1 in possession of land. Thus he did not consider the entire material on record and, therefore, the revisional Court re-appreciated the evidence and came to the conclusion that the party No. 1 was not in possession. This finding is based on proper appreciation of evidence and considering the relevant material on record. 12. According to provisions of section 145, Criminal Procedure Code. Magistrate is required to see which of the parties was in possession on the date of order made by him under sub-section (1) of section 145 of Criminal Procedure Code and according to section 146, Criminal Procedure Code when he is not in a position to satisfy himself as to which of them was in possession he may attach the subject of dispute until a competent Court determines the rights of parties thereto with regard to the persons entitled to the possession thereof. 13. The basis on which party No. 1 was claiming the property is their ancestral rights which can only be determined through civil suit. Earlier by party No. 1 civil suit and appeal filed which has already been dismissed. Hence, no such rights can be determined by way of proceedings under section 145 of Criminal Procedure Code. 14. In the case of Ujagar Singh (supra) it has been held that finding of Civil Court on temporary injunction matter cannot be overlooked. Such finding is binding on criminal Court. 15. For the forgoing reasons, no fault can be found in the impugned order by not finding party No. 1 in possession of disputed land. 14. In the case of Ujagar Singh (supra) it has been held that finding of Civil Court on temporary injunction matter cannot be overlooked. Such finding is binding on criminal Court. 15. For the forgoing reasons, no fault can be found in the impugned order by not finding party No. 1 in possession of disputed land. Such finding is based on proper appreciation of evidence hence does not call for interference. 16. The party No. 2 filed M.Cr.C. under section 482 of Criminal Procedure Code for invoking the inherent jurisdiction of this Court. The main contention of the learned counsel for party No. 2 is that the lower revisional Court ought to have held that party No. 2 was in possession of the disputed land on the basis of evidence adduced in the case, therefore, the lower revision Court has illegally exercised the power by directing the land to be given on supurdnama. 17. It is apparent that the dispute between the parties is of civil nature. The party No. 1 is claiming the property on the basis of it being ancestral, having their share in it and entitled to the possession thereof. On the other hand, party No. 2 is claiming the property on the basis that they have been inherited from their forefather Govind Singh. This involves several complicated questions to be decided by the Civil Court. No such complicated questions can be decided either in the proceedings under section 145, Criminal Procedure Code or under section 482 of Criminal Procedure Code. The remedy is available to the parties by filing civil suit and when the alternative remedy is available then the power under section 482 of Criminal Procedure Code cannot be exercised. It is also established law that no complicated questions of facts can be determined under section 482 of Criminal Procedure Code, therefore, no direction can be made to provide the disputed land to the party No. 2. The Court below has rightly exercised its jurisdiction while directing the property to be given on suspurdnama to an impartial person so that the parties get their rights protected until decided by the competent Court. No flaw is found in the impugned order hence it does not call for any interference. 18. For the foregoing reasons, Criminal Revision filed by party No. 1 and M.Cr.C. filed by party No. 2 deserve to be dismissed. 19. No flaw is found in the impugned order hence it does not call for any interference. 18. For the foregoing reasons, Criminal Revision filed by party No. 1 and M.Cr.C. filed by party No. 2 deserve to be dismissed. 19. Consequently, Criminal Revision No. 812/1997 and M.Cr.C. No. 5990/1997 are hereby dismissed. The order passed by the Sessions Judge, Panna in Criminal Revision No. 61/96 is hereby maintained. The ad-interim stay granted by this Court on 24-9-1997 staying the operation of the impugned order is hereby vacated. Parties to bear their own costs.