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2012 DIGILAW 973 (PAT)

Anandi Yadav v. State of Bihar

2012-07-16

RAKESH KUMAR

body2012
ORDER Heard Sri Baij Nath Thakur, learned counsel for the petitioner, Mr. M.Haque, learned Addl. Public Prosecutor and Sri Manish Kumar, learned counsel, who has appeared on behalf of Opp.Party no.2. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 18.07.2009 passed by the learned 2nd Addl. Sessions Judge, Darbhanga in Cr. Revision No. 529 of 2001. By the said order, learned Addl. Sessions Judge has dismissed the revision petition and affirmed the order passed by the learned Sub Divisional Magistrate, Biraul dated 25.08.2001 in T.R. No.7 of 1996. The learned Sub Divisional Magistrate, Biraul in a proceeding initiated on petition filed by the petitioner under Section 145 of the Code of Criminal Procedure had declared possession of Opp.Party no.2 over the disputed land. 3. Learned counsel for the petitioner submits that in the present case, the dispute is in relation to a land appertaining to Khata No.166, Khesra Nos.9, 16, 17 and 18, situated at village Akanama, Police Station-Kusheshwar Asthan in the district of Darbhanga. At the very outset, it was submitted by learned counsel for the petitioner that long back in the year 1988 itself, on petition filed by the petitioner, a proceeding under Section 144 Cr.P.C. was initiated in relation to the land in question and finally, possession over the land was found in favour of the petitioner’s father and, as such, the said proceeding was disposed of. He submits that once the learned Magistrate in a proceeding had found possession over the disputed land in question of the father of the petitioner, at subsequent stage, there was no ground for initiating further proceeding. He submits that the disputed land was settled in favour of grand-father of the petitioner long back in the year 1949 and since then, the land was in peaceful possession of the father of the petitioner and the family of the petitioner. However, since 1962 Opp.Party no.2 and his family continued to disturb possession of petitioner over the land in question and, as such, proceeding under Section 144 Cr.P.C. was got initiated as per instance of father of the petitioner in the year 1988, in which possession over the land was found in favour of family of the petitioners. He submits that at subsequent stage no further proceeding was required to be initiated. He submits that at subsequent stage no further proceeding was required to be initiated. On this point, learned counsel for the petitioner has placed reliance on a single Bench Judgment of this Court, reported in 2002(2) PLJR 248 ( Ram Yash Singh Vs. The State of Bihar & Ors.). He has specifically referred to paragraph 3 of the said Judgment. For just decision in the matter, it would be appropriate to quote the said paragraph, which is as follows:– “3. It is settled law that repeated proceedings under Section 145 Cr.P.C. is not called for and once possession of a party has been declared by a Magistrate and such declaration has attained finality, if the party who has lost again disturbs the possession of the successful party then administration must take preventive action under Section 144 or under section 107 Cr.P.C. against the law breakers.” On the aforesaid ground, learned counsel for the petitioner has prayed for setting aside the order of the revisional court. 4. Sri Manish Kumar, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioner. He submits that the land in question was purchased by the ancestor of Opp.Party no.2 in the year 1962 through a registered sale deed from the actual land-owner. He further submits that though, Opp.Party no.2 is in possession over the land appertaining to Khata No.166, Khesra Nos.17 and 18, the petitioner without any basis has raised dispute in relation to Khesra Nos.19 and 16 also laid Khesra Nos.17 and 18. He submits that Opp.Party no.2 on the strength of registered sale deed is in actual possession over the land in question. He further submits that without any basis in the year 1995, the father of the petitioner, namely, Mahabir Yadav approached the court of learned Sub Divisional Magistrate for initiation of a proceeding under Section 145 of the Code of Criminal Procedure disclosing the dispute in relation to Khesra nos.9, 16, 17 and 18 of Khata No.166. Initially, the learned Sub Divisional Magistrate without perusing the document or without marking documents as exhibits allowed the proceeding and declared possession over the land in question in favour of the father of the petitioner, which was assailed by preferring a revision vide Cr. Revision No.45 of 1996. Initially, the learned Sub Divisional Magistrate without perusing the document or without marking documents as exhibits allowed the proceeding and declared possession over the land in question in favour of the father of the petitioner, which was assailed by preferring a revision vide Cr. Revision No.45 of 1996. The revisional court after noticing the fact that no document was got marked set aside the order of the learned Sub Divisional Magistrate and remitted back the matter to the learned Magistrate for considering the case afresh after allowing the parties to adduce evidence . He submits that after the case was remitted, the parties were allowed to adduce evidence and, thereafter, Opp.Party herein had filed documents to show his title as well as possession. He submits that after considering each and every points, learned Sub Divisional Magistrate declared the possession over the land in question in favour of Opp.Party no.2, which was assailed by the petitioner before the revisional court and the revisional court by the impugned order has rejected the revision petition. On the point, which was raised by learned counsel for the petitioner that in the year 1988 in proceeding under Section 144 Cr.P.C. the possession over the land in question was found in favour of ancestor of the petitioner is concerned, he submits that order passed in such proceeding may not be examined at this stage. He further submits that it was the petitioner himself, who had approached the court for initiating proceeding under Section 145 of the Code of Criminal Procedure. He further submits that the learned revisional court, while rejecting the revision petition, has rightly considered that such dispute can be settled by a competent court of civil jurisdiction and not by the Sub Divisional Magistrate. In support of his argument, learned counsel for Opp.Party no.2 has heavily relied on a Judgment of single Bench of this Court reported in 1991(1) PLJR 36 ( Ram Chandra Rai & Ors Vs. The State of Bihar & Ors.). While relying on the aforesaid Judgment, he has specifically referred to paragraph-5 of the said Judgment, which is quoted herein below: – “5. While provision of section 144 of the Code deal with urgent case of nuisance or apprehended danger, the provision of section 145 of the Code also deals with a situation when an apprehension of breach of peace exists or continues. While provision of section 144 of the Code deal with urgent case of nuisance or apprehended danger, the provision of section 145 of the Code also deals with a situation when an apprehension of breach of peace exists or continues. In this view of the matter, the provisions of these two sections can be said to be for urgent steps to be taken by a Magistrate to meet any apprehension of breach of peace. As such these provisions are in the nature of emergency provisions. If, however, a proceeding under section 145 of the Code remains pending for more than seven years without any fresh allegation of an apprehension of breach of peace, we feel, that such a proceeding should not be allowed to continue beyond this period since obviously it cannot be said that there is any longer any urgency in the matter. In the meantime, the parties will have ample opportunity to go to a civil court of competent jurisdiction to get their right, title or interest, as also their claim for possession over the disputed land decided finally instead of going to the Magistrate under section 145 of the Code. If the proceeding under section 145 of the Code under the aforesaid condition is allowed to continue beyond a period of seven years, in our view the very purpose of the judicial process get defeated. Any such proceeding cannot be allowed to continue indefinitely if there is no apprehension of breach of peace or any new dispute likely to cause a breach of peace concerning land or water or boundaries thereof. It also goes against the principle of expeditious disposal of the cases. No harm is likely to be caused to be parties who can seek the redressal of their grievances in civil court of competent jurisdiction. In the present case it appears that the parties have remained litigating in this proceeding under Section 145 of the Code for two decades since it appears that the proceeding under section 144 of the Code was started on 24.06.1966 and was converted into a proceeding under section 145 of the Code on 28.7.1966. Hence we hold that the urgent proceeding under section 145 of the Code must be treated to be closed after a lapse of seven years as an urgency cannot be said to continue beyond this period. Hence we hold that the urgent proceeding under section 145 of the Code must be treated to be closed after a lapse of seven years as an urgency cannot be said to continue beyond this period. In suitable cases, however, there can be no bar in starting a fresh proceeding under section 145 of the Code if the situation so warrants.” 5. He submits that keeping in view the fact that the dispute before the learned Sub Divisional Magistrate was pending for such a long time, it would not be appropriate for this Court to interfere with the order of the revisional court. If the petitioner is aggrieved, he may approach the court of civil jurisdiction. 6. Besides hearing the parties, I have also perused the materials available on record. It is true that submission made by learned counsel for the petitioner that in 1988 in a proceeding under Section 144 Cr.P.C., possession of the ancestor of the petitioner was found, the Court is of the opinion that since proceeding under Section 145 Cr.P.C. in the year 1995 was initiated as per instance of the petitioner or his ancestor itself, there is no point for considering that possession was declared in his favour in the year 1988. Initiation of proceeding in the year 1995 as per instance of the petitioner makes it clear that there was some doubt regarding possession over the land by the petitioner, due to said reason, he had approached the Court of learned Sub Divisional Magistrate. Moreover, the petitioner has not bothered to bring on record the order of the revisional court, which was passed in Cr.Revision No.45 of 1996, whereby the matter was remitted back to the learned Sub Divisional Magistrate for deciding the issue afresh with certain directions. Fact remains that after the matter was remitted back to the court below, the learned Magistrate allowed the parties to adduce evidence and after considering the documents had passed the order long back on 25.08.2001, which was assailed by the petitioner vide Cr. Revision No.529 of 2001, which stood dismissed on 18.07.2009. Once possession over the land in dispute was declared in favour of Opp.Party no.2 in the year 2001, it would not be appropriate for this Court to unsettle the order in the year 2012. Revision No.529 of 2001, which stood dismissed on 18.07.2009. Once possession over the land in dispute was declared in favour of Opp.Party no.2 in the year 2001, it would not be appropriate for this Court to unsettle the order in the year 2012. Moreover, the petitioner has not at all pleaded for quashing of order of learned Sub Divisional Magistrate, whereby the possession was declared in favour of Opp.Party no.2. The present petition is fit to be rejected on another ground also that once the petitioner had assailed the order of the learned Sub Divisional Magistrate under Section 397 Cr.P.C., i.e. revisional power, the present petition in the garb of a petition under Section 482 of the Code of Criminal Procedure appears to be second revision, which is barred under Section 397(3) of the Code of Criminal Procedure . Besides this, Ram Yash Singh’s case (supra) as well as Ram Chandra Rai’s case (supra) both are sufficient to indicate that in such matter, the competent court would be the court of civil jurisdiction and not the Sub Divisional Magistrate. 7. I do not find any ground to interfere with the impugned order. Accordingly, the petition stands dismissed.