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2013 DIGILAW 583 (RAJ)

Amilal v. State of Rajasthan

2013-03-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision petition has been filed on behalf of the petitioner challenging the order dated 17.10.2007 passed by the learned Addl. Sessions Judge, Anoopgarh, Distt. Sri Ganganagar in revision, whereby, the revisional court has quashed the order dated 13.8.2004 passed by the learned Sub Divisional Magistrate, Gharsana in Case No. 2/2002 and the direction issued by the learned Sub Divisional Magistrate, Gharsana to deliver the possession of the property in question to the petitioner has been reversed and the learned revisional court directed that the possession of the property in question be handed over to the respondents Nos. 2 and 3. 2. Learned counsel for the petitioner submits that in this case, the disputed land in question is situated at Khasra Nos. 170/64, 171/57 and 191/1 of Chak 5 KD(A) at Gharsana, Distt. Sri Ganganagar. Learned counsel submits that the land was originally allotted to Maghi Bai, who had given the same to the petitioner Amilal for cultivation about 35 years back. For the said period of 35 years, the petitioner Amilal was in continuous cultivatory possession over the land in question. Learned counsel for the petitioner submits that the respondents Nos. 2 and 3 namely Devi Lal and Sahab Ram were having evil eye on the said land and in order to take illegal possession over the land in question, they procured a power of attorney from Maghi Bai and forcibly dispossessed the petitioner from the land in question on 5.5.1999. The petitioner filed an FIR being FIR No. 115/1999 on 6.5.1999 at the Police Station Rawla against the respondents Nos. 2 and 3 and certain other persons. The police filed a charge-sheet against few of the accused named in the FIR who pleaded guilty before the trial court and, accordingly, they were convicted and were released on probation. The SHO, Police Station Rawla initiated proceedings under Section 145 Cr.P.C. through a complaint filed in the court of the learned Sub Divisional Magistrate, Gharsana on 6.5.1999. Thereafter, the land was directed to be attached and the Receiver took the possession of the property in question. The petitioner challenged the order of appointment of Receiver and the learned revisional court accepted the petitioner's revision and quashed the order of appointment of Receiver and directed the Receiver to hand over the possession of the property in question to the petitioner. The petitioner challenged the order of appointment of Receiver and the learned revisional court accepted the petitioner's revision and quashed the order of appointment of Receiver and directed the Receiver to hand over the possession of the property in question to the petitioner. Thereafter, the said order was challenged before this Court by way of a revision and the matter was remanded back to the learned Addl. Sessions Judge who further remanded the matter back to the learned Sub Divisional Magistrate for fresh consideration. The learned Sub Divisional Magistrate thereafter directed possession of the land in question to be handed over to Devi Lal and Sahab Ram by order dated 1.9.2001. The petitioner challenged the said order by way of another revision and the learned revisional court again remanded the matter back to the learned Sub Divisional Magistrate. The learned Sub Divisional Magistrate took the affidavits and claims of the party and ultimately by order dated 13.8.2004, appointment of Receiver as well as the proceedings under Section 145 Cr.P.C. were dropped and the possession of the land in question was directed to be handed over to the petitioner. 3. The respondents Nos. 2 and 3 preferred a revision and the learned revisional court by order dated 17.7.2007 quashed the order passed by the learned Sub Divisional Magistrate and directed the possession of the property in question to be given to the respondents Nos. 2 and 3. 4. Shri S.L. Jain, learned counsel for the petitioner submits that in view of the unimpeachable revenue record which has been filed by the petitioner in the court of the learned Sub Divisional Magistrate, the revisional court was not justified in directing the possession of the land in question to be taken from the petitioner and to be handed over to the respondents Nos. 2 and 3 namely Devi Lal and Sahab Ram. Learned counsel submits that the sole ground on which the possession of the land in question has been given to the respondents Nos. 2 and 3 is that Maghi Devi, the Khatedar of the land in question had given a power of attorney to Sahab Ram. Learned counsel submits that it is an admitted case on record that the petitioner was in cultivatory possession of the land in question since decades. 2 and 3 is that Maghi Devi, the Khatedar of the land in question had given a power of attorney to Sahab Ram. Learned counsel submits that it is an admitted case on record that the petitioner was in cultivatory possession of the land in question since decades. Maghi Devi was the original Khatedar of the land in question, but, the Khatedari rights were taken away by the concerned authorities. Learned counsel submits that in the power of attorney executed by Maghi Devi in favour of Sahab Ram on 2.5.1998, there is no reference to the effect that the possession of the land in question had been handed over to the power to attorney holder. Learned counsel submits that the order passed by the learned Sub Divisional Magistrate in directing the possession of the land in question to be handed over to the petitioner was based on sound reasons and the learned revisional court's order is per se illegal and amounts to a gross abuse of the process of the court. Learned counsel whilst drawing the attention of this Court to the record of the case, particularly, the entries of Jamabandi, the notices issued under Section 22 of the Colonization Act and the proceedings pending inter se between the parties before the Board of Revenue submits all these documents conclusively establish the petitioner's possession over the land in question and thus he prays that the revision deserves to be accepted. 5. Per contra, learned counsel appearing on behalf of the respondents Nos. 2 and 3 have vehemently opposed the submissions advanced by learned counsel for the petitioner and contend that the learned revisional court has rightly held that the learned Sub Divisional Magistrate, Gharsana has misread the evidence whilst considering the question of possession over the land in question. Learned counsel for the respondents Nos. 2 and 3 submits that the possession of the land in question had been handed over to Sahab Ram by the Khatedar Maghi Devi in the year 1998 and, therefore, he was entitled to receive the possession of the property in question and none else. 6. Heard learned counsel for the parties, perused the orders passed by the courts below as well as the record. 7. 6. Heard learned counsel for the parties, perused the orders passed by the courts below as well as the record. 7. It is an admitted fact from record that Maghi Devi, the original Khatedar of the land in question had handed over land for cultivation to the petitioner 30 to 35 years back. The petitioner was in continuous cultivatory possession over the land in question. Various documents i.e. the yearly Girdawari and the notices issued under Section 22 of the Colonization Act establish this fact beyond any manner of doubt. The learned Sub Divisional Magistrate after due appreciation of the record came to a conclusion that the petitioner had been dispossessed from the property in question just two months' prior to the complaint being filed. Thus, in the opinion of this Court the respondents Nos. 2 and 3 namely Devi Lal and Sahab Ram cannot be said to be the persons holding peaceful possession over the land in question for a period of mere two months from the initiation of the proceedings under Section 145 Cr.P.C. The revisional court has drawn much water from the so called power of attorney executed by Smt. Maghi Devi in favour of Sahab Ram. Suffice it to say, a bare perusal of the power of attorney shows that it does not mention about the possession being handed over to Sahab Ram and Devi Lal the respondents herein. Thus, the onus was upon the respondents to establish and proved as to when they came into possession of the land. They have failed to discharge this burden. On the other hand, in the criminal case filed by the petitioner for trespass on his land on 5.5.1999, the companions of Sahab Ram and Devi Lal were charge-sheeted and convicted on their pleading guilty. Thus, the petitioner established beyond any manner of doubt that he was dispossessed from the land in question on 5.5.1999 i.e. just one day prior to the complaint under Section 145 Cr.P.C. being filed. Therefore, he was the only person entitled to receive the possession of the property upon the proceedings under Section 145 Cr.P.C. being dropped. 8. Resultantly, the revision petition is allowed. The order dated 17.10.2007 passed by the learned Addl. Sessions Judge, Anoopgarh, Distt. Sri Ganganagar is hereby quashed and the order dated 13.8.2004 passed by the learned Sub Divisional Magistrate, Gharsana in Case No. 2/2002 is hereby restored. 8. Resultantly, the revision petition is allowed. The order dated 17.10.2007 passed by the learned Addl. Sessions Judge, Anoopgarh, Distt. Sri Ganganagar is hereby quashed and the order dated 13.8.2004 passed by the learned Sub Divisional Magistrate, Gharsana in Case No. 2/2002 is hereby restored. The possession of the land in question shall be taken back from the respondents Nos. 2 and 3 forthwith and shall be handed over to the petitioner Amilal.Record be sent back forthwith.Petition Allowed. *******