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2010 DIGILAW 4 (PAT)

Chamru Mahto v. State Of Bihar

2010-01-05

MADHAVENDRA SARAN

body2010
JUDGEMENT 1. This is an application for quashing the order dated 6.1.2005 passed by learned Additional Sessions Judge- cum-FTC No. 5, Khagaria in Cr. Revision No. 74/03, by which he affirmed the order dated 2.5.2003 passed in Misc. Case No. 20(M)2/ 97 whereby and whereunder the learned Sub-Divisional Magistrate, Khagaria had passed order regarding restoration of possession of the land in dispute. 2. It appears that the petitioner was second party to the proceedings under Section 145 of the Code of Criminal Procedure (in short as the Code) whereas one Dayanand Prasad was first party to the proceeding. The land in dispute was plot No. 3580 under khata No. 725 area 14 katha 4 dhurs. The said proceeding under Section 145 of the Code was initiated in Case No. 455(M)/86. Both the parties in the said proceeding filed their show-cause and adduced evidence and the learned Executive Magistrate by order dated 7.10.1994 declared the possession of the first party over the land in dispute. The heirs of Dayanand Prasad filed Misc. Case No. 20(M)2/97 before the Sub-Divisional Magistrate, Khagaria that though the possession of Dayanand Prasad who was husband of petitioner No. 2 and father of petitioner Nos. 3 and 4 was declared but the present petitioner i.e. 2nd party to the proceeding was in possession over the land in dispute and so he did not prefer any revision against the final order dated 7.10.1994. The heirs of Dayanand Prasad asserted in Misc. Case No. 20(M)2/97 that during the pendency of the proceedings the 2nd party to the proceeding dispossessed Dayanand Prasad forcibly of which information was given to the Court in writing on 16.6.1990, 10.7.1992, 20.9.1992 and 5.4.1993 but in spite of that the learned Magistrate after considering all the materials declared the possession of first party Dayanand Prasad over the land in dispute. The learned Magistrate heard both the parties of Misc. Case No. 20(M)2/97 and by impugned order dated 2.5.2003 ordered restoration of possession in favour of heirs of Dayanand Prasad. Against the said order dated 2.5.2003, the petitioner preferred Cr. Revision No. 74/03 before the District and Sessions Judge, Khagaria. The matter was finally heard and disposed of by learned Addl. Sessions Judge-cum-F.T.C.-5 who affirmed the order of Magistrate and dismissed the revision. Against the said order of dismissal the petitioner has preferred the present application before this Court. 3. Against the said order dated 2.5.2003, the petitioner preferred Cr. Revision No. 74/03 before the District and Sessions Judge, Khagaria. The matter was finally heard and disposed of by learned Addl. Sessions Judge-cum-F.T.C.-5 who affirmed the order of Magistrate and dismissed the revision. Against the said order of dismissal the petitioner has preferred the present application before this Court. 3. Now under sub-section (1) of Section 145 of the Code the Magistrate can initiate the proceeding to decide which party is in actual possession. The word "actual possession" means the possession of the person who has feet on the land, who is ploughing it or growing crops, irrespective of whether he has title or right to possess it. Possessions means lawful possession and not possession taken by force in defiance of law. Then proviso to sub-section (4) of Section 145 of the Code refers to forcible and wrongly dispossession within two months next before the date of police report or other information received by the Magistrate or after that date and before the date of preliminary order under sub-section (1). Therefore, a party who was not in possession within two months from the date of initiation of the proceedings cannot be declared to be in possession. The proviso to sub-section (4) could be successfully invoked only if the party has been forcibly or wrongfully dispossessed within two months prior to the date of preliminary order. Now the position in the present case is that on the date of final order the Magistrate found first party Dayanand Prasad to be in possession over the disputed land and so he declared his possession and also did not pass any specific order in respect of restoration of possession although there was information about his wrongful dispossession during the pendency of the proceedings. 4. It was argued on behalf of the petitioner that the original proceeding was disposed of on 7.10.1994 and thereafter the learned Magistrate became functus officio and so he cannot direct restoration of possession after lapse of about three years as the Misc. Case was filed on 12.11.1997. In this connection he also argued that according to Section (sicArticle ?) 137 of the Limitation Act where no limitation is prescribed for a particular proceeding, in that case the limitation would be three years. So he argued that the order of learned Magistrate is without jurisdiction. 5. Case was filed on 12.11.1997. In this connection he also argued that according to Section (sicArticle ?) 137 of the Limitation Act where no limitation is prescribed for a particular proceeding, in that case the limitation would be three years. So he argued that the order of learned Magistrate is without jurisdiction. 5. It is admitted position that the original proceedings was disposed of on 7.10.1994. Misc; Case No. 20(M)2/1997 for restoration of possession was filed on 12.11.1997. Section of Specific Relief Act gives special privilege to person in possession who take action promptly. In case such persons are dispossessed, this section entitles them to succeed simply by proving (i) that they were in possession, (ii) that they have been dispossessed, (iii) that the dispossession is not in accordance with law, and (iv) that the dispossession took place within six months of the suit. The object of this section is to discourage people from taking law into their hands. After final order dated 7.10.1994 Dayanand Prasad or his heirs never took any step for restoration of possession within the statutory period. They could have easily informed the Magistrate that confirmation of possession or declaration of possession would not serve their purpose as they have been dispossessed during the pendency of the proceedings but no such step was promptly taken within six months and after three years the heirs of Dayanand Prasad filed Misc. Case for restoration of possession. It appears that this aspect of the matter was not examined by the Magistrate or Revision Court. 6. The Revision Court dismissed the revision on the ground that Section 145(6) of the Code does not make it mandatory that the order of restoration of possession should from an integral part of the original order and the Magistrate has jurisdiction under Section 145(6) of the Code to provide such relief. It is true that when a Magistrate declare a party to be in possession under Section 145(6) of the Code he has power to restore possession to such party but such power must be exercised according to law and within the statutory period. In the instant case restoration of possession has. been ordered after expiry of three years which is not permissible in view of Section 6 of Specific Relief Act. 7. In the aforesaid facts and circumstances this application is allowed and both the above two impugned orders are accordingly set aside.