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2014 DIGILAW 888 (PAT)

Mangal Chand Chainwala v. State of Bihar

2014-08-19

ASHUTOSH KUMAR

body2014
Judgment Heard learned counsel for the parties. 2. The petitioner, by the present application has challenged the order dated 14th of September, 2005 passed by the Sub Divisional Magistrate, Forbesganj whereby Opposite Party No. 2 has been held to be in peaceful possession over the plot in question. A further challenge has been put up to the order dated 27th of November, 2007 passed by the learned Ist Additional Sessions Judge, Araria in Criminal Revisional No. 64/442 of 2005 by which the revisional application has been preferred on behalf of the petitioner stood dismissed. 3. The claim of the petitioner is that he got the concerned plot of land because of such property having been devolved upon him on the death of the purchaser of the property. However, in the Khatiyan, some mistake crept in. A title suit, therefore, was filed on behalf of the petitioner for making corrections in the Khatian. However, because of the dispute arising out of the mistake in the Khatian, there was an apprehension of breach of peace. Finding that tension prevailed over the possession of the land in question, a proceeding under Section 107 of the Cr.P.C. was initiated primarily on the basis of a police report. Simultaneously, a separate proceeding was initiated under Section 144 of the Cr.P.C. between the parties. During the pendency of Section 144 proceeding, it is stated, on behalf of the petitioner, the opposite party no. 2 erected a wall and also proceeded with demolishing the construction made by the petitioner, despite the prohibitory orders of the Court. 4. Under such circumstances, the petitioner appears to have filed an application before the Sub Divisional Magistrate, Forbesganj complaining about the disobedience of the order by the Opposite Party No. 2, an application under Section 188 of the Indian Penal Code also was initiated. 5. It appears that thereafter, an application was preferred on behalf of the petitioner for converting the 107 proceeding into one under Section 145 for determination of possession, which prayer was rejected by the Court below. However, this Court vide order dated 6th of December, 2011 (as contained in Annexure-4, Cr. Misc. No. 30633 of 2000) granted a liberty to the petitioner that if the circumstances justify, then a fresh application could be filed before the appropriate authority for initiating a proceeding under Section 145 of the Code of Criminal Procedure. 6. However, this Court vide order dated 6th of December, 2011 (as contained in Annexure-4, Cr. Misc. No. 30633 of 2000) granted a liberty to the petitioner that if the circumstances justify, then a fresh application could be filed before the appropriate authority for initiating a proceeding under Section 145 of the Code of Criminal Procedure. 6. Strengthened by such observation of this Court, an application for initiating the proceeding under Section 145 was filed by the petitioner. 7. In the aforementioned proceeding, the learned Sub Divisional Magistrate, Forbesganj vide order dated 14th of September, 2005 declared the possession of opposite party no. 2 over the land in question. Such an order was challenged by way of revision, which too stood dismissed vide order dated 27th of November, 2007. 8. Both the orders namely order dated 14th of September, 2005 and 27th of November, 2007 are under challenge. 9. From the perusal of the order dated 14th of September, 2005, it appears that the learned Magistrate gave weightage to the consideration that the Title Suit for correction in the Municipal Survey Entry stood rejected on 22nd of March, 1996. The learned Sub Divisional Magistrate, Forbesganj rejected the submission of the petitioner by holding that in case the opposite party no. 2 had erected a wall, the same could have been agitated in another forum and not under Section 145 of the Code of Criminal Procedure. The Court of the Sub Divisional Magistrate was also not convinced of the fact that any emergency regarding breach of peace existed, for determination of the factum of possession under the above proceeding contained in Chapter – X of the Code of Criminal Procedure. After having spoken about non-availability of any emergency situation, giving the authority to the Magistrate to decide the question of possession, the learned Magistrate held that the possession of the property in question lay with opposite party no. 2. Such a declaration of possession in favour of either of the parties, without there being any jurisdiction to decide the issue, is bad in law and facts. On that score the order dated 14th of September, 2005 passed by the learned Sub Divisional Magistrate, Forbesganj is set aside. 10. 2. Such a declaration of possession in favour of either of the parties, without there being any jurisdiction to decide the issue, is bad in law and facts. On that score the order dated 14th of September, 2005 passed by the learned Sub Divisional Magistrate, Forbesganj is set aside. 10. On perusal of the order dated 27th of November, 2007 passed by the learned Revisional Court, it appears that the Revisional Court did not address himself on the desirability of declaring the possession of the property with respect to opposite party no. 2, in the situation when no emergency existed and the learned Sub Divisional Magistrate was of the view that such determination could not be made in the present proceeding. However, surprisingly, the Revisional Court taking the plea that the pendency of a Title Suit bars the jurisdiction of the Magistrate to decide the issue of possession under Section 145, dismissed the revision application but the learned Revisional Court missed out on the fact that despite absence of any jurisdiction, there was a declaration of possession of opposite party no. 2 by the Court below. 11. In that view of the matter, the order dated 27th of November, 2007 also is held to be bad and is set aside. 12. The application, thus, stands allowed. Application allowed.