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2012 DIGILAW 1071 (GAU)

Madhu Sarma v. Ajit Sarma

2012-09-10

UTPALENDU BIKAS SAHA

body2012
JUDGMENT U.B. Saha, J. 1. The instant revision petition is filed by the petitioners, four in numbers, namely, Sri Madhu Sarma, Sri Nirmal Sarma, Sri Ranjit Sarma and Sri Pankaj Sarma, challenging the judgment and order, dated, 18.11.2003 passed by the learned Ad-hoc Addl. Sessions Judge in Criminal Revision No. 74 of 1998 whereby and whereunder the learned Ad-hoc Addl. Sessions Judge set aside the order dated 19.08.1998 passed by the learned Executive Magistrate, Guwahati (hereinafter referred to as "Magistrate") in Case No. 52m of 1991 under sections 145 /146 of the Criminal Procedure Code (for short, "Cr.P.C.") declaring the possession regarding the disputed land in favour of the petitioners who were 2nd party in the proceeding before the Magistrate. Heard Mr. K. Agarwal, learned counsel appearing for the petitioners (hereinafter referred to as "2nd party-petitioners") as well as Mr. B.K. Sarma, learned counsel appearing for the OP (hereinafter referred to as "1st party-OP"). 2. Brief facts needed to be discussed are as follows:- The 1st party-OP filed an application on 08.02.1991 under Section 145 of Cr.P.C. before the learned Magistrate, being No. 52m of 1991 alleging that his father Late Madhab Sarma constructed a house over a plot of land measuring 2 kathas covered by Dag No. 4399, 629 and K.P. No. 584(old), 96(New) at village-Sahar Guwahati Part-VII (Happy villa) under Ulubari Mouza. In the said application, it is stated by the 1st party-OP that 1st party's father late Madhab Sarma was in continuous possession of the disputed land since 1940 till his death in the year 1974 and since then they have been occupying the said land peacefully and the petitioner No. 1 herein i.e. the 2nd party in the original proceeding under Section 145 of Cr.P.C. was the first cousin who was allowed to take shelter by the 1st party-OP on compassionate ground to live in a temporary house covering 1/2 katha of land on the eastern side of the disputed land and on 02.02.1991 during day time, in absence of the 1st party-OP, the 2nd party men broke open the lock of the 1st party's house standing on the disputed land, removed the household goods and demolished the 1st party's residential house. 3. 3. Upon receipt of the said application, the learned Magistrate had drawn up a proceeding under sections 145/ 146 of the Cr.P.C. on 13.02.1991 apprehending breach of peace in the area where the disputed land was situated and accordingly, he issued notice upon the 2nd party-petitioners. On receipt of the said notice, the 2nd party-petitioners appeared and also filed their written statement denying the allegations made by the 1st party-OP. 4. The case of the 2nd party-petitioners before the Magistrate was that the disputed land was previously infested with jungles and it was a hilly area which was cleared by the 2nd party. Thereafter, it was leveled and devolved. In the year 1939, an ordinary thatched house was raised thereon. Subsequently, it was replaced by an Assam Type house in the year 1968 with pucca plinths covering about 3 lechas of land with pucca floor, brick wall and brick post under Holding No. 38. 5. As the said house of the 2nd party-petitioners was not adequate, he took permission from the Guwahati Municipal Development Authority for construction of the Assam Type house and accordingly, he constructed the Assam Type house within 10 lechas of land. It is also stated that on 02.05.1985, 2nd party Madhu Sarma purchased a plot of land measuring about one katha by a registered Sale Deed for a consideration amount of Rs. 2,000/- and the same land was ultimately mutated in his favour on 10.07.1989. In the order of mutation, it has been clearly stated that there is no dispute over the possession of the land in question. 6. During the proceeding in the Court of Magistrate, the 1st party-OP examined as many as 5 witnesses including himself and exhibited 21 nos. of documents. On the other hand, the 2nd party-petitioners examined 3 witnesses including the 2nd party No. 1, Madhu Sarma, and exhibited 4 nos. of documents and also some tax paying receipts. 7. 6. During the proceeding in the Court of Magistrate, the 1st party-OP examined as many as 5 witnesses including himself and exhibited 21 nos. of documents. On the other hand, the 2nd party-petitioners examined 3 witnesses including the 2nd party No. 1, Madhu Sarma, and exhibited 4 nos. of documents and also some tax paying receipts. 7. After recording the evidence and hearing the learned counsel for the parties, the learned Magistrate held that the 1st party might have had a thatched house over the disputed land before they had left for Hatigaon in the year 1982 which cannot be believed for falling natural decay and no breach of peace is proved by any of the witnesses and ultimately declared the possession of the 2nd party-petitioners on the disputed land and vacated the attachment order dated 13.02.1991 in favour of the 2nd party. The Officer-in-Charge, Latasil PS was also directed to execute the order and report the compliance thereof. 8. Being aggrieved by and dissatisfied with the order dated 19.08.1998, the 1st party-OP preferred a revision petition under sections 397/ 399 of Cr.P.C. before the learned Sessions Judge, Kamrup, Guwahati which was registered as Criminal Revision No. 74 of 1998 which was, thereafter, transferred to the Court of learned Ad-hoc Addl. Sessions Judge. 9. Learned Ad-hoc Addl. Sessions Judge after going through the evidence on record adduced by the parties and on perusal of the order of the Magistrate as impugned therein noted that it was the 2nd party-OP who was in possession of the disputed land on the day when the Inquiring Magistrate received the information regarding the dispute and thus, the revisionist-1st party is entitled to the benefit of Section 145(4) of Cr.P.C. Learned Ad-hoc Addl. Sessions Judge also noted in his judgment impugned herein that according to PW-3 though the revisionist-1st party had shifted to Hatigaon, he kept his possession of the disputed land till 02-02-91 when the 2nd party destroyed his house situated there. Sessions Judge also noted in his judgment impugned herein that according to PW-3 though the revisionist-1st party had shifted to Hatigaon, he kept his possession of the disputed land till 02-02-91 when the 2nd party destroyed his house situated there. Thus, the evidence on record clearly shows that the revisionist-1st party was dispossessed from the disputed land within two months before the date when the learned Inquiring Magistrate received the petition filed under section 145 Cr.P.C. and hence, he is entitled to protection under section 145(4) of Cr.P.C. and ultimately allowed the revision petition setting aside the order impugned therein and the case was remanded back to the learned Inquiring Magistrate to do the needful as per law. 10. Being aggrieved by the said order of the learned Ad-hoc Addl. Sessions Judge dated 18.11.2003, the petitioners preferred the instant revision petition. 11. Mr. Agarwal, learned counsel appearing for the petitioners while urging for setting aside the impugned order would contend that the learned Ad-hoc Addl. Sessions Judge failed to appreciate the order of the Magistrate, particularly the observation of the learned Magistrate to the fact that no breach of peace was proved by any of the witnesses. He further submits that the learned Magistrate in his order though did not mention anything in details regarding 2nd proviso of Sub-section 4 of Section 145, but he dealt with the said proviso and came to the conclusion that the 1st party-OP failed to prove by way of adducing evidence that there was any breach of peace consequent to the alleged dispossession. Therefore, the learned Ad-hoc Addl. Sessions Judge has committed error in remanding the case to the Magistrate. He further submits that for establishing a case under Section 145 Cr.P.C., forcible and wrongful dispossession has to be established which is totally absent in the instant case. 12. He has also submitted that neither the 1st party-OP nor his witnesses in their evidence anywhere stated that due to alleged dispossession of the 1st party, there was possibility of any breach of peace either in the locality or between the parties. Thus, the learned Magistrate has rightly declared the possession of the 2nd party-petitioners on the disputed land and vacated the attachment order dated 13.02.91 in favour of the 2nd party-petitioners. He further submits that the learned Ad-hoc Addl. Thus, the learned Magistrate has rightly declared the possession of the 2nd party-petitioners on the disputed land and vacated the attachment order dated 13.02.91 in favour of the 2nd party-petitioners. He further submits that the learned Ad-hoc Addl. Sessions Judge while remanding back the case has considered the evidence of the PW-3 who is admittedly inimical to the 2nd party-petitioners. In support of his aforesaid contention regarding forcible and wrongful dispossession, he has placed reliance on a decision of this Court in Dhanbar Ali & Ors. Vs. Haripada Saha, 1976 Cri. L.J. 1924, wherein this Court while discussing about 2nd proviso of Sub-Section (4) of Section 145 noted that there must be a finding in a case of this nature that the dispossession was both forcible and wrongful and the trial court should also consider as to whether force was applied or not and also whether the dispossession was wrongful or not. 13. In the instant case, the learned Magistrate while declaring the possession of the 2nd party-petitioners specifically stated that there was no breach of peace. Thus, the provisions of Section 145 are not at all attracted, he contended. 14. He also placed reliance on another decision of this Court in Maqbul Hussain 1st Vs. Syadur Rahman 2nd party/opposite Party, (1986) 2 GLR 167, wherein this Court discussed about the scope and ambit of power of the Magistrate to draw proceedings under Section 145 of the Cr.P.C., particularly in paragraph 2 of the judgment which is as follows :- "The distinction between the concept of public order, law and order or public tranquility is to be found in the picturesque description drawn by Hidayatullah, J; in Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 . The distinction between the security of State, public order and law and order, i.e., public tranquility, has been defined by drawing three concentric circles, 'Public order' comprehends disorders of less gravity than those affecting 'security of State'. "Law and order" comprehends disorder of less gravity than those affecting 'public order'. One is to close his eyes and take three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. "Law and order" comprehends disorder of less gravity than those affecting 'public order'. One is to close his eyes and take three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to visualize that an act may affect law and order or public tranquility but not public order just as an act may affect public order but not security of the state. Public order means the even tempo of life of the community even in a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of vibrating a general disturbance of public tranquility. If a party illegally and forcibly occupies the land of another, people may be shocked and even mentally disturbed but the life of the community may keep on moving keeping peace with the even tempo of life of the community. If by the act of dispossession even tempo of life of the community is disturbed or jeopardized, it may be a case of disturbance of public order and tranquility. The acts of private parties with affect personal rights and obligations only but do not disturb the even tempo of the society are merely private feuds for which action may not be necessary to be taken under Chapter-X of the Code of Criminal Procedure. Section 145 of 'the Code' clearly states that to assume jurisdiction the Magistrate must be satisfied that the dispute is likely to cause "a breach of peace". It is not a breach of mental peace of the parties but apprehended breach of peace in the locality. Ordinarily, a person dispossessed of property must sue for recovery of specific immovable property u/s. 5 and 6 of the Specific Relief Act and if there is threat to dispossess him he should institute a suit to obtain injunction. These are forum for establishing the right of the litigants. A proceeding under section 145 Cr.P.C. is, therefore, an extraordinary provision to grant extra-ordinary relief when there is likelihood of breach of peace in the locality. The final order of magistrate is subject to the decision of the civil court. These are forum for establishing the right of the litigants. A proceeding under section 145 Cr.P.C. is, therefore, an extraordinary provision to grant extra-ordinary relief when there is likelihood of breach of peace in the locality. The final order of magistrate is subject to the decision of the civil court. It is, therefore, seen that private dispute between two persons which does not disturb law and order or occasion a breach of the peace in the locality the forum for getting relief is the civil court of competent jurisdiction. Now, what I find all around is that just on some pretext or pretence flood of proceedings u/s. 145 Cr.P.C. are entering in courts like flood water entailing wastage of public money and public time. Before taking up a proceedings u/s. 145 of the Code the Magistrate must be careful, cautious, circumspect and slow. The quintessence of the decision of the Supreme Court in Ram Sumer Puri Mahant vs. State of U.P. AIR 1985 SC 472 is to discourage proceedings u/s. 145 of the Code as far as possible. It is necessary to avoid multiplicity of litigation which is against the interest of the parties and in most of the cases public time is wasted over meaningless and unnecessary proceedings. In Ram Sumer (supra) a note of warning has been sounded by the Supreme Court that the Magistrate should initiate proceedings u/s. 145 of the Code when the essential elements of the section are found to be present in the case. However, these are my passing observations. 15. Finally, he has placed reliance on a decision of the Apex Court in R.H. Bhutani Vs. Miss Man J. Desai & Ors., AIR 1968 SC 1444 , wherein the Apex Court discussed regarding the initiation of the proceedings under section 145 on private complaint, particularly in paragraph-13 wherein it is noted that: The Magistrate has first to decide who is in actual possession at the date of his preliminary order. If, however, the party in de facto possession is found to have obtained possession by forcibly and wrongfully dispossessing the other party within two months next preceding the date of his order, the Magistrate can treat the dispossessed party as if he was in possession on such date, restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. 16. 16. He also submits that the second proviso to sub-section (4) and sub-section (6) of Section 145 contemplate not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession. In the instant case, there is no evidence available so far as forcible and wrongful dispossession of the 1st party is concerned. Thus, the learned Ad-hoc Addl. Sessions Judge committed an error holding that the 1st party is entitled to the protection under section 145(4) of the Cr.P.C. 17. Mr. Sarma, learned counsel appearing for the 1st party-OP while supporting the impugned judgment and resisting the submission of Mr. Agarwal would contend that the 1st party-OP has proved its case by way of adducing evidence that preceding two months from the date of 13.02.1991 the 1st party-OP was in possession of the disputed land and he was dispossessed by the 2nd party-petitioners on 02.02.1991. He further submits that the DW-2/2nd party, Madhu Sarma in his evidence stated that there was only one house raised in 1963 in the disputed land and it was extended in 1990 and the said extension was done on the west. As the extension could not be completed in due time, the present proceeding was filed. But he ultimately completed the said extension work during pendency of this case. Thus, according to him, the 2nd party-petitioners/DW-2 himself admitted regarding the dispossession of the 1st party-OP. He finally contended that the 1st party-OP also filed a criminal case against the 2nd party-petitioners in which they were convicted. Thus, the same also proved that the 1st party-OP was forcibly and wrongfully dispossessed from the disputed land in question. 18. At this stage, Mr. Agarwal, learned counsel appearing for the 2nd party-petitioners submits that from the said criminal case, the 2nd party-petitioners were acquitted by this Court. Thus, it cannot be said that the 2nd party-petitioners either forcibly or wrongfully dispossessed the 1st party-OP from the disputed land in question. 19. This Court has given anxious thought to the submission of the learned counsel for the parties and also has gone through the relevant provisions of Section 145 of Cr.P.C., which is as follows:- 145. Procedure where dispute concerning land or water is likely to cause breach of peace. 19. This Court has given anxious thought to the submission of the learned counsel for the parties and also has gone through the relevant provisions of Section 145 of Cr.P.C., which is as follows:- 145. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) *** (3) *** (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate 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-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) *** (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall 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 subsection (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) *** (8) *** (9) *** (10) *** 20. Section 145 is within Chapter-X of the Cr.P.C. which deals with maintenance of public order and tranquility, particularly the object of the section is to maintain law and order and to prevent a breach of peace by maintaining either one or other of the parties in possession just two months immediately before the reports submitted by the Police Officer or the information regarding the dispute likely to cause breach of peace concerning the land in dispute and not only that, in 145 proceeding the Magistrate cannot inquire the rights of the parties so far as the title of the land is concerned. He can only decide the question of possession and while considering the possession of the disputed land in question, then the Magistrate is to consider the evidence adduced by the parties in the proceeding. Every dispute between the parties regarding the possession of the land would not come within the purview of the Section 145 of the Code unless there is likelihood of breach of peace and if there is no material before the Magistrate which suggests likelihood of breach of peace, then the proceeding under Section 145 would be without jurisdiction. It is also settled that the likelihood of breach of peace should not only be existed on the date of application, but also on the date of preliminary order passed by the Magistrate. 21. It is also settled that the likelihood of breach of peace should not only be existed on the date of application, but also on the date of preliminary order passed by the Magistrate. 21. On proper examination of subsection (1) of section 145, it appears that for initiating a proceeding relating to dispute of land an apprehension of breach of peace in and around the locality is a sine qua non, each and every dispute of land would not attract the provisions of Section 145, more particularly private dispute between two individuals for which remedy under civil law is available and to come within the purview of 2nd proviso of sub-section (4) of Section 145 it has to be proved that the person dispossessed forcibly and wrongfully within two months just before the date on which the police report or otherwise, the information was received by the Magistrate. In the instant case, from the evidence of the witnesses, it is not clear as to how and in what manner the 2nd party-petitioners forcibly and wrongfully dispossessed the 1st party-OP when the 1st party-OP was admittedly not residing in the hut within the disputed land as at the relevant time he was at Hatigaon and it is not established that how and in what manner the 2nd party-petitioners trespassed into the alleged disputed land when admittedly from the evidence it appears that the 2nd party-petitioners were in the disputed land prior to 1974, i.e. before the death of the father of the 1st party-OP. Even if the allegation of the 1st party-OP regarding trespass of the 2nd party-petitioners into the disputed land is accepted, then also a question arises whether due to such trespass there is a likelihood of breach of peace in the locality where the disputed land is situated. It appears from the evidence of the 1st party witnesses that none of them stated anything regarding the likelihood of breach of peace in the locality for the alleged dispossession of the 1st party-OP. If this type of land dispute which in no way disturbs the peace and tranquility in the locality is considered for initiation of a proceeding under section 145 of the Cr.P.C., then that would not really protect the interest of justice, rather defeat the justice. If this type of land dispute which in no way disturbs the peace and tranquility in the locality is considered for initiation of a proceeding under section 145 of the Cr.P.C., then that would not really protect the interest of justice, rather defeat the justice. In view of the above, the learned Magistrate very rightly declared the possession of the 2nd party-petitioners over the disputed land which would be subject to the decision in the civil suit between the parties. 22. Therefore, according to this Court the learned Ad-hoc Addl. Sessions Judge committed error while setting aside the order of the learned Magistrate who considered the entire matter on the basis of the evidence adduced by the parties. 23. In view of the above, I allow the revision petition setting aside the impugned order dated 18.11.2003 passed by the learned Ad-hoc Addl. Sessions Judge and restore the order of the trial Magistrate. Send down the lower court records. Petition allowed