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2013 DIGILAW 814 (RAJ)

Ram Chandra v. Rameshwar Lal

2013-04-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision has been preferred by the petitioner challenging the order dated 17.3.2011 passed by the learned Sessions Judge, Churu in revision, whereby the learned revisional court has allowed the revision filed by the respondent No. 1 and has reversed the order dated 3.11.2010 passed by learned SDM, Sardarshahar in Case No. 18/2010. 2. Succinctly stated the facts of the case are that the petitioner filed a complaint in the court of the SDM under Section 145 Cr.P.C. alleging about existence of a dispute over possession of the khatedari field bearing Khasra No. 363 measuring 20 Bigha 15 Biswa located at Rohi Moja Bejasar, Tehsil Sardarsahar, District Churu. The allegation levelled in the complaint was that there was a serious dispute going on between the parties regarding the possession of the field in question and there was every likelihood of breach of peace. It was also mentioned that previously also, number of cases had been registered in relation to the same land. 3. The complaint filed by the petitioner was forwarded for inquiry to the SHO Police Station Sardarshahar, who conducted the inquiry and thereafter moved two applications before the learned SDM, one under Section 145 Cr.P.C. and another under Section 146(1) Cr.P.C. mentioning therein that a serious dispute was going on between the parties, who were both claiming the possession over the agricultural land in question and that the same should be attached as there was an imminent danger of blood shed and breach of peace due to the rival claims of possession over the disputed property. 4. The factum regarding registration of numerous criminal cases between the parties was also mentioned in the complaint. 5. The learned SDM after applying mind to the complaint filed by the SHO recorded a satisfaction that a serious dispute was going on between the parties in relation to the claim of possession over the land in question and numerous litigation's were pending in various courts. By the impugned order, the SDM held that in order to prevent the happening of any further untoward incident, the land be attached and the SHO Police Station Sardarshahar was thus appointed as a Receiver of the property in question by order dated 3.11.2010. 6. By the impugned order, the SDM held that in order to prevent the happening of any further untoward incident, the land be attached and the SHO Police Station Sardarshahar was thus appointed as a Receiver of the property in question by order dated 3.11.2010. 6. A composite order recording the requisite satisfaction for the initiation of the proceedings under Section 145 Cr.P.C. and for attachment of the same under Section 146 (1) Cr.P.C. was passed by the Executive Magistrate. The respondent No. 1 (party No. 2 in the 145 Cr.P.C. proceedings) challenged the order dated 3.11.2010 by filing a revision and the learned revisional court quashed the same by its order dated 17.3.2011 holding that the SHO Police Station Sardarshahar who had been appointed as a receiver of the property in question had taken the possession of the property from the respondent No. 1 (party No. 2) and thus he should handover the possession thereof to the respondent No. 1 (party No. 2). Now the petitioner being the party No. 1 in the proceedings under Section 145 Cr.P.C. has approached this Court challenging the order dated 17.3.2011 passed by learned revisional court. 7. Ms.Vandana Bhansali, learned counsel for the petitioner submitted that there was a genuine apprehension of breach of peace due to the rival claims of possession over the property in question. She contended that the petitioner is the khatedar of the land in question and was having possession thereof. She further contended that the respondent No. 1 claims possession over the property on the strength of an oral agreement claimed to have been executed by the father of the petitioner but the very existence of any such agreement is doubtful. She contended that the learned revisional court without even permitting the parties to lead evidence before the Executive Magistrate for establishing their claims, went into the merits of the case and examined the revenue records etc. which were not a part of the record and thereafter substituted its own satisfaction in place of the satisfaction of the learned SDM without there being any justification calling for such an exercise. 8. She further contended that admittedly, pursuant to the attachment order, the receiver took possession of the field in question from the petitioner (party No. 1). which were not a part of the record and thereafter substituted its own satisfaction in place of the satisfaction of the learned SDM without there being any justification calling for such an exercise. 8. She further contended that admittedly, pursuant to the attachment order, the receiver took possession of the field in question from the petitioner (party No. 1). The respondent No. 1 (party No. 2) was not even present at the spot when the possession of the land was taken by the receiver, as such, there was no occasion for the learned revisional court to have held in its order that the possession of the property in question was taken from the respondent No. 1. She submitted that the finding of the revisional court is incorrect, perverse and contrary to record and thus, the possession of the land should be handed over to the petitioner. She has taken this Court through the possession memo prepared by the Receiver (SHO Police Station Sardarshahar on 5.1.2010 and pointed out that nowhere does the document refer to the fact that the possession of the property in question was taken from the respondent No. 1 (party No. 2). She thus prayed that the revision deserves to be accepted and the order passed by the learned revisional court i.e. learned Sessions Judge, Churu quashing the order dated 3.11.2010 passed by the learned SDM, Sardarshahar and directing handing over of the possession of the property in question to the respondent No. 1 be quashed. 9. Per contra, Shri J.R.Beniwal, learned Sr.Advocate assisted by Shri B.L. Choudhary, learned counsel for the respondent No. 1 vehemently contended that numerous revenue litigations are pending between the parties in relation to the land in question. He contended that the petitioner's father had sold and handed over the possession of the property to the respondent's father long back. The proceedings under Section 145 Cr.P.C. were managed by the petitioner malafidely for having the respondent ousted from the property in question. He contended that as numerous revenue proceedings are pending between the parties in relation to the same property, the very proceedings under Section 145 Cr.P.C. were not maintainable and thus the revisional court rightly directed the property to be released from attachment. 10. He contended that as numerous revenue proceedings are pending between the parties in relation to the same property, the very proceedings under Section 145 Cr.P.C. were not maintainable and thus the revisional court rightly directed the property to be released from attachment. 10. Learned counsel for the respondent No. 1 placed reliance on the following decisions of Hon'ble Apex Court, this Court and other High Courts in support of his contentions: (i) 1996 Cr.L.J. 3782 Jalaludeen v. State of Rajasthan & Ors. (ii) 2002 WLC (Raj.) UC 2002 Ram Swaroop Singh v. State & Ors. (iii) 2004(1) Cr.L.R. (Raj.) 117 Hukam Ram v. The State of Rajasthan & Ors. (iv) 2008(3) RCC 1095 Mool Chand v. State of Rajasthan & Anr. (v) 1978 Cr.L.J. 671 Amrit Singh & Ors. v. Gyandeo Sharma & Anr. (vi) 1976 Cr.L.J. 1492 Laxman Bhikaji Pawar & Ors. v. Bahimkhan Balekhan Dalwai & Ors. (vii) 2012 Cr.L.J. 48 Smt.Santosh Jain & Ors. v. Salim Khan & Ors. (viii) 1999 WLC (Raj.) UC 693 Madan Lal & Ors. v. State of Rajasthan & Ors. (ix) 2002(3) SCC 700 Ranbir Singh v. Dalbir Singh & Ors. (x) 2004 (13) SCC 421 Mahar Jahan & Ors. v. State of Delhi & Ors. 11. On the strength of the aforementioned judgments, he urged that the order passed by the learned revisional court being based on the reasoning that the proceedings under Section 145 Cr.P.C. could not be undertaken because of the revenue litigations pending between the parties is just and proper and thus, does not call for any interference. He further submitted that the revisional court rightly arrived at a finding that the field in question was purchased by Sardara Ram, the father of the respondent No. 1 Rameshwar from Aduram the father of the petitioner Ramchandra long back and therefore, the attachment of the property in question by resorting to Sections 145/146 Cr.P.C. was illegal. He further submitted that the learned revisional court has also given a finding that no preliminary order was drawn by the learned SDM and therefore, the proceedings under Section 145 and 146 Cr.P.C. were grossly illegal and were rightly quashed by the revisional court. 12. Heard and considered the arguments advanced at the bar and perused the record. 13. He further submitted that the learned revisional court has also given a finding that no preliminary order was drawn by the learned SDM and therefore, the proceedings under Section 145 and 146 Cr.P.C. were grossly illegal and were rightly quashed by the revisional court. 12. Heard and considered the arguments advanced at the bar and perused the record. 13. From a perusal of the record, it is apparent that the learned SDM after due appreciation of the allegations levelled in the complaint and after going through the complete record recorded a satisfaction that the parties were draggers drawn in relation for the possession over the property in question. Numerous criminal cases had been registered between the parties over the dispute of possession of the land, which was subject matter of the complaint. After recording the due satisfaction about the likelihood of breach of peace and imminent danger of blood shed, the learned SDM drew a composite order directing issuance of notices to the parties and simultaneously directed the attachment of the property in question. It is true that the order passed by the Executive Magistrate appears to be in the wrong sequence because the attachment has been ordered before directing issuance of notice under Section 145(1) Cr.P.C. but the fact remains that it is the spirit behind the order which is to be seen and not the technical flaws therein. 14. The grievance as expressed by learned counsel for the respondent No. 1 about the maintainability of the proceedings under Section 145 Cr.P.C. on the ground that revenue proceedings were going on between the parties in relation to the same land could have been agitated by the petitioner by contesting the matter before the learned SDM, Sardarshahar and demonstrating before the SDM that the land should be freed from attachment as the revenue litigation is pending between the parties in relation to the same land. No such record was available before the executive Magistrate when the land was directed to be attached. No such record was available before the executive Magistrate when the land was directed to be attached. That apart, the question which has to be considered is as to whether there was any justification for the revisional court to have gone into the factual aspects of the matter for upsetting the order passed by the learned SDM under Section 145 Cr.P.C. In the normal course, the revisional jurisdiction is only to be exercised for interfering in the orders passed by the lower court if the same suffer from any illegality, perversity or irregularity. A factual appreciation for the purpose of upsetting the satisfaction recorded by the trial Court is normally not permissible in a revision. The revisional court in the case at hand has taken upon itself to consider the documents filed by respondent No. 1 (party No. 2) in extenso and thereafter recorded a difference of opinion from that recorded by the SDM. Undisputedly, the documents which were considered by the revisional court were not brought on the record of the Executive Magistrate. In none of the decisions, which have been cited by the learned counsel for the petitioner, the courts have considered the aspect that merely the pendency of the revenue proceedings between the parties alone can be a ground to quash the proceedings under Section 145 Cr.P.C. 15. That apart, the observation made and finding recorded by the learned revisional court in directing the possession of the property in question to be handed over to the respondent No. 1 is highly questionable and appears to be arrived at by misreading the facts. The revisional court observed in its order that the possession of the property in question was taken by the SHO from the party No. 2 Rameshwar Lal and thus, the same should be handed over to the party No. 2 Rameshwar Lal after quashing the attachment. Learned counsel for the respondent No. 1 (party No. 2 in the 145 Cr.P.C. proceedings) has not been able to point out to this Court as to what was the justification behind this finding of the revisional court. This Court has perused the memo prepared by the SHO whilst attaching the property in question and in the said memo, there is not even a reference to the name of the respondent No. 1 as being the person from whom the possession of the property in question was taken. This Court has perused the memo prepared by the SHO whilst attaching the property in question and in the said memo, there is not even a reference to the name of the respondent No. 1 as being the person from whom the possession of the property in question was taken. The documents refer to the presence of Ramchandra (petitioner), Hadman Singh and Triloka Ram in whose presence, the property was attached. Therefore, the facts reveal that the revisional court was predetermined and bent upon to facilitate the possession of the property be handed over to the respondent Rameshwar Lal (party No. 2). The facts have been twisted and misread for this purpose. 16. In the opinion of this Court, since there are number of criminal litigations going on between the parties, the learned SDM rightly formed opinion about existence of a serious apprehension of breach of peace due to rival claims of possession on the property in question. 17. As regards the contention of the learned counsel for the respondent No. 1 that the Executive Magistrate did not draw a preliminary order before proceeding in the matter and thus the proceedings are bad, this Court has examined the matter and finds that the learned Magistrate has drawn a composite order for recording satisfaction about imminent danger to breach of peace and for directing attachment. Such a composite order is permissible as has been held in numerous judgments of this Court. 18. Resultantly, the revision succeeds and is allowed. The order dated 17.3.2011 passed by learned Sessions Judge, Churu is quashed and the order dated 3.11.2010 passed by learned SDM, Sardarshahar is restored. The property in question shall be attached and taken possession of by the Receiver i.e. SHO Police Station Sardarshahar and thereafter, the learned SDM shall decide the main proceeding under Section 145 Cr.P.C. expeditiously in accordance with law.The record be sent back forthwith.Stay petition is also disposed of.Petition allowed. *******