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2011 DIGILAW 453 (RAJ)

LRs. of Ratanlal v. LRs. of Bheem Raj

2011-02-28

VINEET KOTHARI

body2011
Hon'ble Dr. KOTHARI, J.— This revision petition was filed by respondent Ratanlal S/o Kishan being aggrieved of the order passed by learned Sub Divisional Magistrate, Sirohi in Criminal Case No. 7/92 filed by complainant Bheem S/o Amarchand under Sec. 145, Cr.P.C. 2. By the impugned order dated 7.10.2003, the learned SDO found that property in question was purchased by a registered sale-deed by applicant Bhem Raj from one Achuki Devi and Mohanlal on 11.6.1992 and since respondent Ratanlal tried to encroach or the said property by putting some stone pattis, cabin and bags of coal and there was danger of breach of peace between the parties on account of the said encroachment, therefore, allowing application under Sec. 145, Cr.P.C., the learned SDO directed that respondent Ratanlal may remove his encroachment from the said plot of land and the possession of the same may be handed over to applicant Bheem Raj. 3. Being aggrieved by the said order, respondent Ratanlal approached this Court by way of present revision petition and by the ex-parte order dated 3.11.2003 while admitting the revision petition, a Coordinate Bench of this Court granted status quo with respect to the subject properly. 4. Both the original parties, applicant Bheem Raj and Ratanlal have since expired and their legal representatives are on record by separate orders passed by the Coordinate Benches of this Court vide orders dated 21.5.2007 taking the legal heir Yogendra Goyal S/o Har Govind and Satish Goyal s/o Ratanlal on the basis of a Will executed in favour of Yogendra Goyal by Ratanlal whereas vide order dated 11.1.2010 the LRs of applicant Bheem Raj were taken on record. Since considerable time has passed then the matter was heard finally by this Court, today. 5. The case of applicant Bheem Raj before the learned SDO was that he purchased the said property from one Achuki Devi and Mohanlal by a registered sale-deed on 11.6.1992 who had title of the said property since 1936 on account of document issued by Major Commanding Officer, since the land in question was in Cantt. 5. The case of applicant Bheem Raj before the learned SDO was that he purchased the said property from one Achuki Devi and Mohanlal by a registered sale-deed on 11.6.1992 who had title of the said property since 1936 on account of document issued by Major Commanding Officer, since the land in question was in Cantt. Area and the said predecessor-in-title Achuki Devi was in constant possession of the subject property since 1936, and soon after purchase of the suit property on 11.6.1992 respondent Ratanlal tried to encroach the said plot of land by putting his bags of coal, stone pattis and cabins there and thus there was imminent possibility of breach of peace between the parties on this account and therefore, the said application under Sec. 145 Cr.P.C. was filed by Bheem Raj. Against the summons issued by the learned SDO to respondent Ratanlal, the said respondent Ratanlal also preferred a revision petition before the learned Sessions Judge, which was, however, dismissed as pre-mature on 8.8.1997. 6. Learned counsel for LRs. of revision petition Ratanlal, Shri M.C. Bhoot, Sr. Advocate, assisted by Mr. Surendra Singh submitted that the learned Court below in the impugned order dated 7.10.2003 has erred in exercising his jurisdiction under Sec. 145 of the Cr.P.C. since applicant Bheem Raj in the application under Sec. 145 had claimed possession of the subject property without filing any civil suit for possession and since question regarding title and possession cannot be determined under Sec. 145 Cr.P.C., the impugned order is per-se illegal and deserves to be set aside. He also submitted that the documents filed in the form of Ex. D/10 & D/11 issued by Municipal Council, Sheoganj to respondent Ratanlal demanding house tax in respect of the said property were not considered by the learned SDO and since the respondent had a long possession over the said property, the impugned order directing the possession of the subject property to be handed over to applicant Bheem Raj cannot be sustained and the said order deserves to be set aside. 7. Per contra, Mr. 7. Per contra, Mr. Vipul Singhvi, learned counsel appearing for the LRs of Bheem Raj, vehemently submitted that the impugned order passed by the learned SDO on 7.10.2003 is perfectly legal and justified and since respondent applicant Bheem Raj had valid title over the subject property under the registered sale-deed dated 11.6.1992 in which there was a clear stipulation that the title as well as the possession of the subject property was handed over to applicant Bheem Raj on the said date, since respondent Ratanlal sought to encroach over the said subject property by putting his goods like stone patties, bags of coal, cabins etc. and there was an imminent danger of breach of peace, therefore, the proceedings under Sec. 145 of Cr.P.C. were rightly initiated by the applicant and the learned SDO, Sirohi rightly held that respondent Ratanlal appeared to have encroached over the said land after 11.6.1992 and therefore directed him to remove those encroachments and handover the possession back to the applicant, who was put into possession under the registered sale-deed on 11.6.1992 by sellers Smt. Achuki Devi and Mohanlal, who had possession over the said land since 1936. Learned counsel for the respondent applicant Mr. Singhvi also drew the attention of the Court towards the statement recorded by learned SDO of respondent Ratanlal, who in his cross examination clearly admitted that the said plot of land belonged to Smt. Achuki Devi and that she had executed a registered sale deed in favour of applicant Bheem Raj and that respondent Ratanlal had not initiated any action for cancellation of said sale-deed. He also admitted that he had not moved the Municipal Council for recording his possession over the said subject property at any point of time and that he also did not have any title over the said property since the land in question was in Cantt. Area. Learned counsel for the respondent applicant, therefore, prayed for dismissal of the present revision petition filed by Ratanlal. 8. Having heard learned counsels and in view of the provisions of Sec. 145 of Cr.P.C., it is true that in the proceedings under Sec. 145 of Cr.P.C. the question of title cannot be determined by the learned SDO, but in view of proviso to sub-sec. 8. Having heard learned counsels and in view of the provisions of Sec. 145 of Cr.P.C., it is true that in the proceedings under Sec. 145 of Cr.P.C. the question of title cannot be determined by the learned SDO, but in view of proviso to sub-sec. (4) which requires that if the learned Magistrate comes to the conclusion that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-sec. (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order passed under sub-sec. (1) of Sec. 145 Cr.P.C. Sub-sec. (6) of Sec. 145 Cr.P.C. further empowers the Magistrate to issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the proviso to sub-sec. (4), may restore to possession of the party forcibly and wrongfully dispossessed. Sub-sec. (1) of Sec. 145 Cr.P.C. requires the learned Magistrate to form an opinion that there is a dispute with regard to land or water which includes buildings, markets fisheries, crops or other produce of land as per sub-sec. (2) and that such dispute is likely to result in breach of peace. Thus, obviously, with a view to restore and maintain peace and law & order, necessary orders can be passed by the learned Magistrate including the orders relating to restoration of possession to the party, who has been forcibly and wrongfully dispossessed. 9. In the present case, admittedly, applicant Bheem Raj, now represented by his LRs. had purchased the said property through a registered sale-deed on 11.6.1992 and was put in possession by the sellers. This factum of sale has been admitted by respondent Ratanlal in his statement recorded by learned SDO. The said respondent Ratanlal also admitted he did not have any title over the said property, then how stone patties, cabins or bags of coal were placed by him on the said subject property was never explained by him. His documents Ex. This factum of sale has been admitted by respondent Ratanlal in his statement recorded by learned SDO. The said respondent Ratanlal also admitted he did not have any title over the said property, then how stone patties, cabins or bags of coal were placed by him on the said subject property was never explained by him. His documents Ex. D/10 and D/11 do not specify as to which portion of the property belongs to him or house tax was demanded from him by the Municipal Council and thus whether these documents pertain to subject property or not is not clear. As against the valid and legal title of the subject property held by the applicant, respondent Ratanlal did not have any semblance of right, title and interest over the said property. Therefore, in view of the encroachment on the said plot of land found by the learned SDO, which could result in breach of peace, it was very much within the parameters of Sec. 145 Cr.P.C. upon which learned SDO after making enquiry and recording statements of the parties, came to the aforesaid conclusion that respondent Ratanlal had encroached over the said plot of land after 11.6.1992, the date of purchase of property by registered sale-deed by the applicant Bheem Raj. Consequently, the directions to remove such encroachment and handover the possession of subject land to applicant Bheem Raj cannot be faulted and the said directions are within the parameters of Sec. 145 of Cr.P.C. 10. This Court is, therefore, satisfied that there is no error in the impugned order passed by the learned SDO on 7.10.2003 and this revision petition filed by respondent Ratanlal, now represented by his LRs, does not have any force. 11. Consequently, this revision petition is dismissed. No orders as to costs.