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2013 DIGILAW 889 (RAJ)

Sewa Singh @ Saheb Singh v. State of Rajasthan

2013-05-06

VIJAY BISHNOI

body2013
JUDGMENT 1. - Both these criminal misc. petitions under section 482 Cr PC have been preferred by the petitioners against the order dated 29.03.2011 passed by the learned Additional Sessions Judge, (Fast Track) No. 3, Hanumangarh (for short 'the revisional court' hereinafter) in Cr.Revision Petitions No. 70/2008 and 129/2008, whereby the learned revisional court has allowed the revision petitions filed by the respondent No. 2 and set aside the orders dated 05.08.2006 and 18.04.2001 passed by the learned Judicial Magistrate, Hanumangarh (for short 'the trial court' hereinafter) in F.R. No. 90/2001 and F.R. No. 227/2000 respectively, whereby the learned trial court dismissed the protest petitions preferred by the respondents and accepted the final report submitted by the police. 2. Brief facts, necessary for disposal of these petitions, are that respondent No. 2 filed a complaint before the trial court and claimed that a plot measuring about 50x80 feet belonging to his father is situated in Ward No. 12 at Hanumangarh Junction. In that plot, respondent No. 2 and his brothers Vijay Kumar and Chandra Shekhar are having equal shares. It is also stated that in respect of a shop measuring about 13x30 feet, which is part of the above mentioned plot, a civil dispute is going on between the respondent No. 2 and the petitioners. It is further contended that on 04.05.2000, when the petitioner had visited the plot in question, he found that Gurnam Singh, his son, son's wife and two other labourers were constructing a toilet (Kui) on a part of the plot, which is falling out of the area of shop measuring 13x30 feet for which the civil suit is going on. It is stated by the respondent No. 2 in the complaint that the petitioners had illegally encroached over the part of the plot, therefore, they committed offences punishable under sections 447, 451 and 420 IPC. The complaint was forwarded to the Police Station, Hanumangarh Junction, the police started investigation and after investigation, the negative final report was filed by the police, while concluding that the civil dispute is going on between the parties in respect of the property in question and, therefore, no offence as alleged by the respondent No. 2 is made out against the petitioners. 3. 3. Being aggrieved with this, the respondent No. 2 preferred a protest petition before the learned trial court and the learned trial court vide order dated 18.04.2001 dismissed the said protest petition and accepted the final report submitted by the police. 4. In the meantime on 05.3.2001 again, the respondent No. 2 lodged an FIR at Police Station, Hanumangarh Junction to this effect that on 04.03.2001 when he visited the plot situated in Ward No. 12 of Hanumangarh Junction, he found that both the petitioners along with Gurnam Singh, father of petitioner No. 1 got a door opened towards the road the eastern side of the disputed shop and obtained unauthorised water connection from the southern side of the plot and also constructed a bathroom on the part of plot with intend to grab the whole plot, while clarifying that the dispute between the respondent No. 2 and the petitioners is in respect of a piece of plot measuring 13x30 feet, whereas now the petitioners have encroached upon the plot out side of area and as such, they committed offences punishable under sections 451, 452, 427, 447 and 420 IPC. After investigation, the police submitted a final report, while concluding that a civil litigation in respect of the disputed property is going on between the parties and there is no evidence of commission of any criminal offence as alleged in the complaint. 5. Being aggrieved with this, the respondent No. 2 had preferred a protest petition, however, the learned trial court dismissed the said protest petition and accepted the final report submitted by the police vide order dated 05.08.2006. 6. Separate revision petitions were preferred by the respondent No. 2 against the orders dated 18.04.2001 and 05.08.2006. The revisional court has decided those revision petitions vide order dated 29.03.2011, and while quashing the orders dated 18.4.2001 and 05.08.2006, directed the trial court to pass fresh orders in accordance with the observations made in the order. 7. Being aggrieved with the order dated 29.03.2011, the petitioners have preferred these two criminal misc. petitions. 8. Learned counsel for the petitioners has vehemently argued that the learned revisional court has no jurisdiction to direct the trial court to pass a fresh order into the matter. 7. Being aggrieved with the order dated 29.03.2011, the petitioners have preferred these two criminal misc. petitions. 8. Learned counsel for the petitioners has vehemently argued that the learned revisional court has no jurisdiction to direct the trial court to pass a fresh order into the matter. It is also contended by the learned counsel for the petitioners that admittedly a civil litigation is going on between the parties in respect of the property for which the respondent No. 2 made the complaint in the police and in view of the pendency of the said civil litigation, no case for any criminal offence as alleged in the complaint is made out against the petitioners. Learned counsel for the petitioners has further argued that the action of the revisional court of remanding the matter for passing fresh orders is absolutely unwarranted in view of the facts and circumstances of the case and has, therefore, prayed for quashing of the order dated 29.03.2011. 9. Learned Public Prosecutor and the counsel appearing on behalf of respondent No. 2 have supported the impugned order dated 29.03.2011 passed by the learned revisional court and have argued that the learned revisional court has rightly pointed out that the size of the plot, belonging to the father of the petitioner is 50x80 feet and the dispute between the petitioners and the respondent No. 2 is pending in respect of the shop situated in 13x30 feet area of the plot then in the garb of civil litigation pending in respect of the piece of land measuring about 13x30 feet, the respondent No. 2 cannot be allowed to encroach upon the whole plot for which no civil litigation is pending and, therefore, it is submitted that there is no illegality in the order passed by the learned revisional court. The learned revisional court has rightly remanded the matter to the trial court for passing fresh order in the light of the above observations. 10. Heard learned counsel for the parties and perused the record. 11. The learned revisional court has rightly remanded the matter to the trial court for passing fresh order in the light of the above observations. 10. Heard learned counsel for the parties and perused the record. 11. It is an admitted position that out of the plot measuring 50x80 feet, the civil litigation in respect of the shop situated in 13x30 feet area is pending between the parties, however, in respect of the remaining land, no civil litigation is pending between the parties and the learned revisional court, after taking into consideration this aspect of the matter, has observed that in the garb of the civil litigation in respect of shop situated in 13x30 feet area, the petitioners have no right to encroach upon the remaining part of plot. In this respect, the learned revisional court, has taken into consideration the decision of the Hon'ble Apex Court, wherein it is held that a person cannot claim right over the property owned by co-sharers on the basis of a transaction from one of the sharers without getting it partitioned. 12. In view of the facts and circumstances of the case and looking to the observations made in the order impugned, this Court is of the opinion that there is no illegality in the order impugned dated 29.03.2011 passed by the learned revisional court, while remanding the matter to the learned trial court for passing fresh orders in the light of observations made in the order impugned. 13. Consequently, there is no force in these petitions and the same are hereby dismissed.Record of the trial court be sent forthwith.Petitions dismissed. *******