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2012 DIGILAW 626 (PAT)

Manju Devi v. State of Bihar

2012-04-16

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT A.K. Trivedi, J. – Petitioners/second party have challenged the order dated 11.07.1991 passed by Sri Rajeev Chauhan, Executive Magistrate, Buxar in Misc. Case No. 119(m)/1988. Trial No. 163 of 1994 whereby and whereunder the learned lower Court had declared possession of first party/respondent second, third party over disputed land as well as order dated 18.07.1998 passed by Second Additional District & Sessions Judge. Buxar in Criminal Revision No. 146 of 1994/7 of 1994 by which the learned Additional Sessions Judge dismissed the revision. 2. A proceeding under Section 145, Cr PC was initiated with respect to lands falling under khata No. 86. khesra No. 1369, Area 1 acre 60 decimal, 1379 Area 24 decimal, 1380 Area 2.80 acre, 1495 area 86 decimal lying at village Unwas Tola Bishrampur, P.S.-Itarhi, District- Buxar. 3. It is case of the first party/respondent Nos. 1 and 2 that aforesaid land belonged to one Fulwasiya, first wife of Sukh Ram Singh who had a daughter Dhanwatiya Devi. Fulwasiya died leaving behind sole daughter her heir in the year 1965. In due course of time, aforesaid Dhanwatiya executed sale-deed in their favour on 10.03.1983 and since thereafter they are coming over the land peacefully, are cultivating the land and are enjoying its usufruct. On false and frivolous plea, petitioners/second party began to interfere with the peaceful possession of the first party resulting serious apprehension of breach of piece on account of which instant proceeding has been drawn. 4. At the other hand the case of the second party/petitioners is that there was one Sukh Ram Singh who had two wives. The first happens to be Fulwasiya and second happens to be Golaychi, Sukh Ram had no issue from Fulwasiya, Manju Devi, one of the member of second party happens to be daughter of Sukhram Singh from Golaychi. In due course of time, Sukh Ram Singh and Golaychi executed deed of gift in favour of Manju Devi on 14.08.1986 and since thereafter Manju Devi is corning over the land. It has further been submitted that Sukh Ram Singh had purchased disputed, land in name of Fulwasiya. The land so purchased happens to be self acquired property of Sukh Ram Singh without having any concern with Dhanwatiya Devi who is a stranger to the family Further submitted that Sukh Ram Singh had executed sale-deed in favour of others members of second party/petitioners vide sale-deed No. 15.06.1981. The land so purchased happens to be self acquired property of Sukh Ram Singh without having any concern with Dhanwatiya Devi who is a stranger to the family Further submitted that Sukh Ram Singh had executed sale-deed in favour of others members of second party/petitioners vide sale-deed No. 15.06.1981. So submitted that the members of the first party/respondent Nos. 2 and 3 illegally got a proceeding under Section 145 of the Cr PC. 5. During trial before the learned lower Court both the parties have flied their W.S. led oral as well as documentary evidence on their behalf and after scrutinizing the same, the learned lower Court declared the disputed land under possession of respondent Nos. 2 and 3/first party. The aforesaid order was challenged by the petitioners/second party in a criminal revision. After having dismissal of criminal revision instant petition has been filed on their behalf. 6. It has been contended on behalf of the petitioners/second party that the successive order passed by the learned lower Court are bad in law as well as on facts, hence is fit to be set aside. Then submitted that the learned lower Court failed to acknowledge the requirement of law whereunder the Courts are expected to declare possession of the party, whether it is a legal or illegal, over disputed land and not the right to possession. Further submitted that finding of the consolidation proceeding is binding upon the learned Magistrate because it commands title as well as possession. However, after going through the order of the learned Magistrate, it is evident that the learned Magistrate posing itself as an appellate Court of the Consolidation Officer, discussed and scrutinized the order and then rejected the same, which the learned Magistrate ought not. In likewise manner, the learned lower Court dealt with law of inheritance that too in illegal way and in the aforesaid background suffer from illusion leading to declaration of possession of respondent second, 3rd party/first party over the disputed land. The learned Magistrate should have accepted the finding of the Consolidation Authority supported with oral evidence adduced on behalf of petitioners/second party that too when the learned Magistrate admitted presence of Manju Devi in the line of inheritance of Sukhdeo Singh. In likewise manner without making proper appraisal of the finding of the learned Magistrate on this score, the learned Revisional Court dismissed the revision. In likewise manner without making proper appraisal of the finding of the learned Magistrate on this score, the learned Revisional Court dismissed the revision. Hence both the successive orders are against the settle norms of law and is fit to be set aside. 7. At the other hand learned lawyer for opposite party Nos. 2 and 3 has supported the finding recorded by the learned Magistrate. It has been argued that ample materials were placed before the learned Magistrate regarding sanctity of the order passed by the Consolidation Authority as being collusive. So, no reliance should be placed thereupon. So far other parts of the order is concerned, that had sunnily considered the factum of possession in the background of oral as well as documentary evidence. Hence the order impugned is fit to be confirmed. 8. The learned AC to AAG-IX has submitted that there happens to be concurrent finding then in that event it is better to direct the parties to get the order impugned properly adjudicated upon through Civil Court. 9. After going through the order of the learned Magistrate, it is evident that learned Magistrate had confined its order dealing with two issues. The first one happens to be with regard to propriety of the order, passed by the Consolidation Authority and the second happens to be entitlement of Manju Devi in the background of law of inheritance. 10. Certainly the learned Magistrate was not exercising its power as an appellant authority that of Consolidation Officer who had passed an order in favour of Manju Devi as per law whereunder procedure to challenge by way of appeal, revision is provided. There is no document on record to suggest that respondent Nos. 2 and 3/first party had ever filed an appeal against the order impugned. So, the conclusion as per materials available before the Magistrate is that the order of the Consolidation Authority was in existence. The status of the order passed by Consolidation Officer and its repercussion over the proceeding under Section 145 of the Cr PC has been taken into consideration long-long ago as reported in 1984 BBCJ page 316 wherein it has been observed that the Magistrate while considering the factum of possession has to own the finding recorded by Consolidation Authority. 11. The status of the order passed by Consolidation Officer and its repercussion over the proceeding under Section 145 of the Cr PC has been taken into consideration long-long ago as reported in 1984 BBCJ page 316 wherein it has been observed that the Magistrate while considering the factum of possession has to own the finding recorded by Consolidation Authority. 11. The second aspect happens to be with regard to status of Manju Devi, petitioner/second party whose presence as a daughter of Sukh Ram with Golaychi has been recorded at, the other hand status of Dhanwatiya Devi has also been dealt with. In a proceeding under Section 145 of the Cr PC, the right of possession is immaterial, material fact is in whose possession the land happens to be. From the order impugned it is evident that learned lower Court inferred adversely to the interest of petitioner only on the ground that Dhanwatiya Devi happens to be daughter of Fulwasiya from aforesaid Sukh Ram Singh and as the land happens to be in name of Fulwasiya, so after death of Fulwasiya its passed upon Dhanwatiya. As Dhanwatiya has executed sale-deed in favour of respondent Nos. 2 and 3/first party so they are entitle for possession and consequent thereupon declared the possession. Moreover from the order of the learned Magistrate, it is evident that Magistrate had failed to properly scrutinized the oral evidence on the point of factum of possession. The Revisional Court while dismissing the revision, overlooked the infirmities persisting in the lower Courts order. 12. In the aforesaid background, the successive orders are found to be devoid of merit and are accordingly, set aside. Consequent thereupon, petition is allowed. Petition allowed.