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2015 DIGILAW 1086 (JHR)

Kameshwar Mahto v. State of Jharkhand

2015-09-14

RAVI NATH VERMA

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JUDGMENT : The second party of a proceeding under Section 107 of the Code of Criminal Procedure (in short “the Code”) has preferred this revision against the judgment dated 13th March, 2014 passed by the Additional Sessions Judge- VI, Hazaribagh in Criminal Appeal No. 01 of 2013 whereby and where under the order dated 03.12.2012/10.12.2012 passed by the Sub-Divisional Magistrate (in short “the S.D.M.”), Ramgarh directing the second party-petitioners to execute bond of Rs.5,000/- each with two sureties of like amount each for keeping peace for a period of one year as provided under Section 117 of the Code, has been affirmed. 2. On a report submitted by the Officer-in-charge of Rajrappa Police Station, the said S.D.M., Ramgarh apprehending the breach of peace between the above two parties with regard to their possession over an area of 7.21 and 1/2 acre of land of Khata No. 15, initiated the proceeding under Section 107 of the Code and directed both the parties to file their respective show causes. Where after, both the parties filed their show- causes in the court below claiming their respective possession over the land in dispute. 3. It appears from the record that the dispute with regard to the title of the parties over the above land was earlier decided by a competent Civil Court in favour of present opposite party no.3- Kanhai Mahto, the first party in the court below. Aggrieved by the said judgment and decree, the Judgment Debtor preferred an appeal before the District Judge but the same was also dismissed and subsequently the second appeal filed by the same judgment debtor before the Hon’ble High Court in S.A. No. 203 of 2003 and before the Hon’ble Supreme Court were also dismissed. In the said suit and appeals, Gaji Mahto, the father of the present petitioner no.3 Menka Mahto, was a party. 4. From the show cause filed by the first party in the court below, it appears that the land of Khata no.- 15 was recorded in the Khatiyan in the name of Nandlal Mahato, who had purchased the land in auction in the Benami name of his brother-in-law Ram Singh but Nand Lal Mahato being the real owner came in possession and continued in possession of the said land. In the year 1946, the said Nand Lal Mahato sold 7.21 and 1/2 acres of land to Radha Nath Mahto and Mosammat Valko by registered sale deed. Later on Mosammat Valko sold half of the above land to her son-in-law Mohan Mahto and Radha Nath Mahto and another half of the land in the joint names of Rameshwar Mahto, Kanhai Mahto the first party of the proceeding under Section 107 of the Code, Manhai Mahato and Kailash Mahato by registered sale deed dated 25.09.1981 and put them in possession of the land. Accordingly, the names of the purchasers were mutated. In the year 1984, the suit was filed in the court of Sub-Judge-IV, Hazaribagh bearing Title Suit No. 50 of 1984 in which, Gaji Mahato, the father of present petitioner no.3 Menka Mahato, was also a party. The said Gaji Mahto in his written statement filed in the court clearly plead that he has no claim or any connection with the land in question and during evidence in court also, he confirmed his statement that he has no connection with the land in dispute. As stated above, the matter went up to the Hon’ble Supreme Court and at every stage, it was decided in favour of the present opposite party no.3 Kanhai Mahato. 5. The case of the second party as pleaded in the show-cause was that their ancestor Ram Singh had purchased the said land in a Certificate Case and since after the purchase, they had been coming in possession of the land in question and after the death of Ram Singh, the petitioner nos. 1 to 5 have been coming in possession. 6. The Court of Sub-Divisional Magistrate, Ramgarh after considering the pleadings and evidences adduced by the parties, restrained the second party-the petitioners by order dated 10.12.2012 from going over the land in question and also directed them to execute the bond as indicated above. The petitioners being aggrieved by the said order preferred an appeal before the Sessions Judge, Hazaribagh, but the same was also dismissed. Hence, this revision. 7. Learned counsel Mr. H.K.Mahato appearing for the petitioners assailing the order impugned as well as the order passed by the S.D.M., Ramgarh as perverse and bad in law seriously contended that the court of S.D.M., Ramgarh without providing proper opportunity to the petitioners passed an ex parte order, which was ultimately affirmed by the appellate court. Hence, this revision. 7. Learned counsel Mr. H.K.Mahato appearing for the petitioners assailing the order impugned as well as the order passed by the S.D.M., Ramgarh as perverse and bad in law seriously contended that the court of S.D.M., Ramgarh without providing proper opportunity to the petitioners passed an ex parte order, which was ultimately affirmed by the appellate court. It was also submitted that the ancestor of the petitioners Ram Singh was the bonafide purchaser of the land in question in a Certificate Case and since after the purchase, his ancestor and subsequently the petitioners have been coming in possession but without considering the case of the parties in right perspective, the court below passed the order impugned. It was also submitted that during pendency of the proceeding under Section 107 of the Code, a petition was filed at the instance of the petitioners to convert the proceeding under Section 145 of the Code, but the Court of S.D.M., Ramgarh rejected their prayer. Aggrieved by the said order, refusing to convert the proceeding under Section 145 of the Code, the petitioners preferred a revision bearing no. 267 of 2012 before the Sessions Court but the said revision was rejected at the stage of admission itself. It was also submitted that the court of S.D.M., thereafter, fixed the case for ex parte hearing and did not provide any time to the petitioners. Hence, the order passed by the S.D.M., Ramgarh being an ex parte order, is illegal and fit to be set aside as no proper opportunity was provided to the petitioners to place their case before that court and the subsequent order of the appellate court is also bad in law. 8. Refuting the contentions of the petitioners’ counsel, the learned senior counsel Mr. M.K.Dey appearing for present opposite party nos. 3 and 4 contended that the revision filed by the petitioners before the Session Court was dismissed at the admission stage itself as there was no merit in that revision. It was also submitted that after examination of two witnesses by the first party, who is the opposite party no.2 here, the third witness was examined in court, but the petitioners refused to cross-examine that witness and did not take part in the proceeding. Only thereafter, the case was fixed for ex parte hearing. It was also submitted that after examination of two witnesses by the first party, who is the opposite party no.2 here, the third witness was examined in court, but the petitioners refused to cross-examine that witness and did not take part in the proceeding. Only thereafter, the case was fixed for ex parte hearing. As such, there is no merit in this revision and is liable to be rejected. 9. For continuation of a proceeding under Section 107 of the Code, a statutory period of 60 days is prescribed in sub-section (3) of Section 116 of the Code from the date of its initiation. It appears from the record that relying upon a report of the Officer-in-charge of the concerned police station regarding existence of apprehension of breach of peace, the Court of S.D.M., Ramgarh before expiry of the statutory period of 60 days extended the period by another four months by order dated 03.08.2012 and finally the proceeding was concluded by order dated 10.12.2012. 10. It is well settled that this Court sitting in revision has a very limited scope and cannot re-appreciate the evidences available on the record. This Court has only to examine the illegality or impropriety in the order impugned. Apparently, on the basis of a report of the Officer-in-charge of the concerned police station that apprehension of breach of peace is still existing between the parties over the land in question, the court below considering the evidences available on record and the fact that title and possession of the first party had earlier been adjudicated and settled by a competent court of civil jurisdiction, affirmed till the Hon’ble Supreme Court, rightly restrained the petitioners from going over the land in question. The direction to maintain peace for one year on execution of bond of Rs.5,000/- each is also in consonance with the provision of sub-section (6) of Section 116 of the Code. I do not find any illegality or impropriety in the order impugned. Learned counsel for petitioners has not pointed out any plausible ground to interfere with the findings recorded by the two courts below. 11. In view of the above discussion, I do not find any merit in this revision application. It is, accordingly, dismissed. However, the court of Sub-Divisional Magistrate, Ramgarh shall be at liberty to initiate a fresh proceeding as and when required.