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2011 DIGILAW 289 (RAJ)

Hazi gulam Rasul v. Gulaam Farid

2011-02-08

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - This revision petition has been filed by the petitioners, in which, the petitioners have challenged order dated 13.09.2006 passed by the Addl. Sessions Judge, Parbatsar in Criminal Revision Petition No.17-A/2000 and prayed that order passed by the Assistant Collector-cum- Executive Magistrate, Makrana dated 10.12.1999 may be restored and possession as ordered by the Assistant Collector-cum-Executive Magistrate, Makrana may be ordered to be given to the petitioners. 2. It is admitted position of the case that a criminal miscellaneous petition under Section 482, Cr.P.C. has been filed by the private respondents against the same order and prayed that order passed by the Addl. Sessions Judge, Parbatsar dated 13.09.2009 may be quashed to the extent of appointing receiver for the disputed land. Said criminal miscellaneous petition has been registered as S.B. Cr. Misc. Petition No.1295/2006. 3. Learned counsel for the petitioners submits that order passed by the Addl. Sessions Judge, Parbatsar is totally without application of mind and without giving any finding that the learned Executive Magistrate has committed any illegality while passing order dated 10.12.1999. It is also submitted that the revisional Court has not appreciated the adjudication made by Hon'ble Supreme Court and passed the order in very casual manner on the ground that in the suit filed by the petitioners before the Civil Judge (Sr. Dn.), Parbatsar the application for temporary injunction has been rejected.Learned counsel for the petitioners invited my attention towards judgments of Supreme Court, reported in AIR 1959 SC 690 and 1989 Cr.L.R. (SC) 637 and two judgments of this Court, reported in 1985 Cr.L.R. (Rajasthan) 424 and 1970 RLW 410 and submits that even if the civil suit is pending the Executive Magistrate can pass order under Section 145/146, Cr.P.C. for handing over possession if evidence is produced by the claimants, therefore, the order passed by the revisional Court deserves to be quashed. 4. Per contra, learned counsel for the respondents submits that learned Addl. Sessions Judge, Parbatsar has applied mind and passed order for appointment of receiver till disposal of the civil suit and, now, the civil suit filed by the petitioner has already been decided by the Civil Judge (Sr. Dn.), Parbatsar, therefore, the petitioners cannot claim any right in view of the fact that civil suit filed by the petitioners before the civil Court has been dismissed. Dn.), Parbatsar, therefore, the petitioners cannot claim any right in view of the fact that civil suit filed by the petitioners before the civil Court has been dismissed. Learned counsel for the respondent, therefore, prays that this revision petition may be dismissed and Assistant Collector-cum-Executive Magistrate may be directed to proceed in the matter as ordered by the revisional Court vide judgment dated 13.09.2006. 5. I have considered rival submissions made by both the parties. 6. The petitioners are not disputing that the civil suit filed by them has been dismissed by the civil Court but it is submitted that the appeal against the said order is pending, therefore, it cannot be said that no right is in existence in favour of the petitioners. In my opinion, in view of the judgment of the Hon'ble Supreme Court reported in 1985 Cr.L.R. (SC) 57, if civil litigation was pending at the initial stage when complaint was filed, then, there was no occasion for the Assistant Collector to proceed in the matter; but, somehow, he proceeded in the matter and matter was further decided by the Addl. Sessions Judge, Parbatsar with certain directions. Now, therefore, in the interest of justice, I am of the opinion that though after dismissal of the civil suit filed by the petitioners, if any right is left with them on the ground of pendency of appeal, then, they are required to file an application before the Assistant Collector-cum-Executive Magistrate, Makrana and said authority is required to pass appropriate order in compliance of the order passed by the revisional Court while taking into consideration the fact that civil suit filed by the petitioners has been dismissed and, as per judgment of Hon'ble Supreme Court reported in 1985 Cr.L.R. (SC)57, no proceedings under Section 145/146, Cr.P.C. can run. 7. In this view of the matter, in my opinion, no interference is required in the order passed by the Addl. Sessions Judge, Parbatsar in the revision petition filed by the respondents. However, now the civil suit has been decided, therefore, appropriate orders are required to be passed with regard to giving possession by the Assistant Collector-cum-Judl. Magistrate, Makrana. 7. In this view of the matter, in my opinion, no interference is required in the order passed by the Addl. Sessions Judge, Parbatsar in the revision petition filed by the respondents. However, now the civil suit has been decided, therefore, appropriate orders are required to be passed with regard to giving possession by the Assistant Collector-cum-Judl. Magistrate, Makrana. Therefore, while dismissing this revision petition, the Assistant Collectorcum- Executive Magistrate, Makrana is directed to proceed in the matter as directed by the revisional Court vide impugned judgment dated 13.09.2006 and pass orders after providing opportunity of hearing to both the parties, within a period of one month from the date of filing certified copy of the order.Revision petition dismissed. *******