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2011 DIGILAW 312 (GAU)

Ratneswar Gogoi v. Madhab Goswami

2011-04-07

A.C.UPADHYAY

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JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. P.D. Gogoi, Learned Counsel for the Petitioner. None appears for the Respondent despite service of notice. 2. This revision petition is directed against the order, dated 28.8.2003, passed by the Executive Magistrate, Guwahati, in Case No. 43m/1996, under Section 145/146, Cr.PC. 3. Facts, leading to filing of this revision petition, reveals that the Executive Magistrate, Guwahati, initiated a proceeding under Section 145, Cr.PC on 1.2.1996, on the basis of the petition, filed by Sri Madhab Goswami (respondent herein), supported by an affidavit, wherein it was stated that the Respondent was the owner and possessor of a plot of land, measuring 1 Khata, 10 Leches, covered by Dag No. 56, K.P. Patta No. 23 of village No. 1, Hengrabari Non-K, in Mouja Beltola. It was stated in the petition that the Respondent had purchased the aforesaid plot of land from one Sri Madan Kalita of Ranibari, Panbazar, by a registered Sale Deed, bearing No. 938, Sl. 798, dated 31.12.1985, and accordingly, the name of the Respondent was also mutated on 18.11.1987, against the plot of land in question, and since then, the Respondent was enjoying possession of the land by regularly paying the land revenue. 4. The 1st party, Respondent herein Sri Madhab Goswami, further alleged in the petition that on 22.12.1995 by hiring some 'gundas', opposite party, the Petitioner herein, Ratneswar Gogoi, forcibly constructed some concrete posts over the plot of land belonging to the Respondent. Apprehending serious breach of peace and tranquillity by the 1st party/respondent filed the petition before the Executive Magistrate, Guwahati. The Executive Magistrate, Guwahati, on receipt of the petition drew up a proceeding under Section 145/146, Cr.PC and attached the disputed plot of land to prevent the breach of peace and tranquillity the area. 5. The Respondent/petitioner herein entered appearance in the court of the Executive Magistrate, Guwahati, by filing written statement, and contested the proceeding aforementioned. 6. On 2.11.1996, both the parties filed joint petition, praying for demarcation of the disputed land by late Mandal stating therein that both the parties wanted a proper demarcation of the land for mutual benefit and settlement of the case. Accordingly, a direction was given to the Circle Officer, Dispur by the learned Executive Magistrate to depute concerned late Mandal to demarcate the land. Accordingly, a direction was given to the Circle Officer, Dispur by the learned Executive Magistrate to depute concerned late Mandal to demarcate the land. Accordingly, the Circle Officer, Dispur, submitted report stating therein that demarcation on the disputed plot of land was carried out in terms of the direction issued by the court. Subsequently, the Circle Officer, Dispur, corrected the land Schedule, wherein the Patta was also corrected. 7. After due verification, it was found that as per report submitted by the Circle Officer, the name of the 1st party/respondent was mutated in Dag No. 56 and that of the Petitioner was in possession of Dag No. 57, but no land documents were available with the opposite party/petitioner. 8. On the basis of the report dated 25.8.2000 of the Circle Officer, Dispur, final order was passed by the Executive Magistrate, Guwahati on 28.8.2000 in favour of the opposite party/petitioner. However, the 1st party/respondent preferred a revision petition before the Court of learned Sessions Judge, Kamrup, against the aforesaid order dated 28.8.2000, passed by the learned Executive Magistrate, Guwahati. Learned Sessions Judge, Kamrup, remanded the matter to the trial court, for fresh disposal of the case in accordance with law. 9. The learned Executive Magistrate, Kamrup, on receipt of the proceeding on remand from the Sessions Judge, Kamrup, took up the proceeding and went ahead to examine the witnesses, adduced by the 1st party/respondent as well as the opposite party/petitioner to declare possession of the disputed land in terms of Section 145(4) of Cr.PC. After careful evaluation of the evidence of the witnesses, the learned Executive Magistrate came to the conclusion that the disputed land was in actual physical possession of the 1st party/respondent and the Petitioner herein had no physical possession over the disputed plot of land. According to the findings of the learned court below the Petitioner herein tried to take over the land on the plea of the land being a Government land, without any documents. Learned Executive Magistrate further held that the 1st party Respondent is entitled to possession of the disputed land, shown in the schedule, until evicted therefrom by a competent court in due process of law. 10. Learned Executive Magistrate further held that the 1st party Respondent is entitled to possession of the disputed land, shown in the schedule, until evicted therefrom by a competent court in due process of law. 10. The operative portion of the decision of the learned Executive Magistrate in the aforenoted case reads as follows: While going through the evidence on record and other record filed, exhibited by the parties, it is seen that the D/L is a miyadi patta land of Dag 57 wherein the original pattadar has claimed that he has sold the land to 1st party, i.e., Mr. Madhab Goswami. As per Circle Officer's report 56 No. Dag of 23 patta is in the name of Shri M. Goswami as per documents submitted by 1st party. The safe deed has been rectified to Dag No. 57 in 1990 but no mutation has been done. In this connection it is also mentioned in the Circle Officer's report that 1 katha 10 lechas, i.e., the D/L falls within Dag 57 of 23 patta of the total land of 7 bighas. 3 katha, 14 lechas of Shri Matiram Kalita and Madan Katha, wherein Shri Madan Kalita was PW-1 of this case and claimed that he sold the land to Shri Madhab Goswami. Now the determination of this Court is which one of the parties have forcefully and wrongfully dispossessed within two months next before the date one which the information was received by the court. Although the Circle Officer had reported that there is a tin roofed house of the 2nd party the structure given by the Trial Magistrate on 7.10.1993, on the basis of police report dated 5.9.1993. is also to be looked upon. As to whether the tin roofed house built during the proceeding period was dismantled was not looked upon. Moreover the Circle Officer has clearly pointed out that there is no land document with the 2nd party. One of the witnesses has claimed the disputed land as Government land which is not the fact. After careful consideration of all points enumerated above, I came to the conclusion that the D/L has been in actual possession of the 1st party. Moreover the Circle Officer has clearly pointed out that there is no land document with the 2nd party. One of the witnesses has claimed the disputed land as Government land which is not the fact. After careful consideration of all points enumerated above, I came to the conclusion that the D/L has been in actual possession of the 1st party. The 2nd party has not physical possession over the D/L. The 2nd party had forcefully tried to take over the land on the plea that is a Government land without any documents, but from the evidence is clear that the land was purchased by the 1st party and developed. The 2nd party had tried to grab the land. After careful consideration of all the points enumerated above, I came to the conclusion that the D/L has been in actual possession of the 1st party. The 2nd party has not physical possession of the D/L. The 2nd party claimed that the disputed plot of land on the plea that it is a Government land. The 1st party is entitled to possession of D/L shown in the schedule until evicted therefrom by a competent court in due process of law and forbidden all disturbances of such possession until such evicted O/C Dispur P.S. Is ordered to put the 1st party in possession of the land. 11. I have heard the contentions of the Learned Counsel for the Petitioner. It has been contended by the Learned Counsel for the Petitioner that the 1st party/respondent was not in possession of the land in question, therefore, the order passed by the learned Executive Magistrate, declaring possession in favour of the Respondent is illegal and further claimed that the land in question was a Government khas land. 12. The learned Executive Magistrate while making the enquiry as to possession of the plot of land afforded adequate opportunity to both the parties to adduce evidence. The opposite party/petitioner, as contended, could not prima facie show that the disputed land in question was a Government khas land. The decision arrived at by the learned trial court do not suffer from any illegality or irregularity warranting interference by this Court. 13. The Executive Magistrate, Guwahati, passed the impugned order holding therein that the disputed land was in the actual possession of the 1st party/respondent and the Petitioner herein had no physical possession over the disputed land. The decision arrived at by the learned trial court do not suffer from any illegality or irregularity warranting interference by this Court. 13. The Executive Magistrate, Guwahati, passed the impugned order holding therein that the disputed land was in the actual possession of the 1st party/respondent and the Petitioner herein had no physical possession over the disputed land. I do not find any reasonable ground to disturb the impugned order passed by the learned court below. The impugned order aforesaid passed by the learned Executive Magistrate, would not preclude the parties to approach the civil court of appropriate jurisdiction, for desired relief, in accordance with law. 14. After careful evaluation of the materials on record, considering the facts and circumstances, I do not find any illegality and impropriety in the order dated 28.8.2003, passed by the Executive Magistrate, Guwahati, warranting interference by this Court. 15. Accordingly, without lingering the discussions any further, I hold that the revision petition filed on behalf of the Petitioner is devoid of merit, and accordingly, stands dismissed. 16. However, I pass no order as to costs. Appeal dismissed.