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2011 DIGILAW 2145 (RAJ)

Bhiyaram v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the parties.This misc. petition has been filed on behalf of the petitioner Bhiya Ram challenging the order dated 20.10.2000 passed by the Additional Collector cum Executive Magistrate. Banner in Case No. 162/97 (State v. Premraj & Anr.) whereby whilst dropping the proceedings under Section 145 Criminal Procedure Code the learned Magistrate has directed the handing over the possession of the property in question to the respondent No.2 Premraj and against the order dated 25.08.2004 passed by the learned Additional Sessions Judge, Banner in Criminal Revision No.20/2000 affirming the aforesaid order dated 20.10.2000. 2. Assailing the orders impugned, counsel for the petitioner has submitted that in this case, the learned Executive Magistrate has not considered the material available on the record in its correct perspective whilst directing the handing over of the possession of the property in question to the respondent No.2. It has further been submitted that the police whilst preparing the site plan of the property has not properly demarcated the boundaries and, therefore, the difficulty arose. It has been submitted that the petitioner's khasra number is 555 whereas the respondent No.2 is in possession of khasra No.556/3 and that the respondent was trying to take illegal possession of the land which was not a part of said khasra No.556/3 because the land of the petitioner was adjacent to the land of respondent No.2. Accordingly, it is submitted that the matter be remanded back to the executive magistrate for a proper consideration. 3. Per contra, learned public prosecutor as well as learned counsel for the respondent No.2 have supported the orders impugned. 4. I have considered the arguments advanced at the bar and perused the record of the case. 5. On an enquiry being made by the learned S.D.M., it was found that the land of the respondent No.2 was located in khasra No.556/3 whereas the petitioner's land was situated in khasra No.555. 4. I have considered the arguments advanced at the bar and perused the record of the case. 5. On an enquiry being made by the learned S.D.M., it was found that the land of the respondent No.2 was located in khasra No.556/3 whereas the petitioner's land was situated in khasra No.555. It was also found from the enquiry that the respondent No.2 was entitled to possession of khasra No.556/3 which has been put under the receivership and the learned Executive Magistrate whilst dropping the proceedings by the impugned order dated 20.10.2000, directed handing over of the possession of part of land of khasra No.556/3 measuring 140 feet x 65 feet to the respondent No.2 and in pursuance of the said direction, the possession of land has already been given to the respondent No.2 way back in the year 2004 and as such, even if the petitioner now seeks a relief regarding possession of the land, then appropriate remedy was to file a proper litigation before the concerned civil or revenue court. 6. From a perusal of the record of the case, it becomes apparent that the land which the petitioner claims to be his, is located in khasra No.555 whereas the land of the respondent No.2 is undisputedly bearing khasra No.556/3. The petitioner has not put in any claim in relation to demarcation of boundaries between the two lands, then appropriate remedy in this regard would be to file an appropriate application before the revenue courts. A Court of Executive Magistrate whilst considering the proceedings under Section 145 Criminal Procedure Code is not supposed to or does not have jurisdiction to make an enquiry regarding demarcation of the boundaries of the land in question. This course of action is only available to the civil court or revenue court while exercising jurisdiction under the Rajasthan Land Revenue Act or Rajasthan Tenancy Act. 7. In view of the above discussion, this court is of the opinion that the courts below have committed no error in directing the possession of the land measuring 140 feet x 65 feet forming a part of khasra No.556/3, of which the respondent No.2 is khatedar, to its original tenant. The direction which the petitioner wants to seek by way of this misc. The direction which the petitioner wants to seek by way of this misc. petition, cannot be granted now after passing of more than seven years since the actual possession of land has already been handed over to the respondent No.2 and otherwise also, the said relief is beyond the domain of a criminal court. 8. Resultantly, this misc. petition being bereft of any force, is hereby dismissed.Stay application also stands dismissed.Petition allowed. *******