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2015 DIGILAW 323 (RAJ)

Alam v. State of Rajasthan

2015-02-04

VIJAY BISHNOI

body2015
JUDGMENT 1. - This Criminal Miscellaneous Petition under Section 482 Cr.P.C. has been filed by the petitioners being aggrieved with the Order dated 16.10.2014 passed by learned Additional Sessions Judge, Parbatsar, District-Nagaur (hereinafter referred to as 'the Revisional Court') in Revision Petition No. 8/2014 passed by the Sub-Divisional Magistrate, Prabatsar, District-Nagaur (hereinafter referred to as 'the Trial Court') in the proceeding under Sections 145 and 146 Cr.P.C. has been dismissed. 2. Brief facts of the case are that on 4.9.1978, a complaint under Section 145 Cr.P.C. was filed before the Executive Magistrate (Tehsildar, Banswara) by one Brijlal (father of Respondents Nos. 2 and 3). The Executive Magistrate, after taking into consideration the seriousness of law and order situation, passed the order of attachment of the plot in question and appointed Patwari of Village 3hakri as Receiver. 3. Later on, the petitioners filed a suit before the Civil Court, however, the Civil Court on 22.5.1998, dismissed the said suit and on the basis of the said judgment and decree passed by the Civil Court, the Executive Magistrate dropped the proceedings, under Section 145 Cr.P.C. vide Order dated 20.10.1999. However, the Respondents Nos. 2 and 3 along with their 3 sisters preferred a Revision Petition before the Additional District Judge, Parabatsar and the Revisional Court vide Order dated 19.2.2003 remanded the matter to the Executive Magistrate with direction to decide that which of the party is entitled to retain the possession of the disputed property as per the provisions of subsection (4) of Section 145 Cr.P.C. in the meantime, the Executive Magistrate had again dropped the proceedings. However, the Additional District Judge, Parabatsar while exercising its revisional Jurisdiction, again remanded the matter to the Executive Magistrate to decide afresh after taking into consideration the provisions of sub-section (4) of Section 145 Cr.P.C. The said Order dated 12.1.2006 passed by the Revisional Court was challenged by the petitioners before this Court by way of S.B. Criminal Miscellaneous Petition No. 351/2006, however, the same was dismissed as withdrawn with a direction to the Executive Magistrate to decide the matter in the light of directions given by the Revisional Court expeditiously within a period of four months from the date of receipt of said order. Pursuant to the said directions, the Executive Magistrate vide Order dated 6.1.2014 has decided the proceedings under Sections 145 and 146 Cr.P.C. and passed an order that the possession of the disputed property be handed over to the Respondents Nos. 2 and 3 because two months prior to passing of the attachment order, the said parties were in possession of the disputed land. 4. Being aggrieved with the Order dated 6.1.2014, the petitioners had filed a ] Revision Petition, which was dismissed vide Order dated 16.10.2014. Hence, this Criminal Miscellaneous Petition. 5. Learned Counsel for the petitioners has submitted that the Revisional Court has not taken into consideration the Judgment and decree passed by the Additional District Judge (Fast Track), Parabatsar on 13.5.2009 in ah Appeal filed by the petitioners wherein while deciding the Issue No. 4 the Appellate Court has dearly held that the respondents are not entitled for any injunction restraining the petitioners from dispossessing the respondents from the disputed plot. It is contended that the said Judgment and Decree dated 13.5.2009 has not been taken into consideration by the Revisional Court solely on the ground that the same has not been pressed into service by the petitioners before the Executive Magistrate. It is contended by learned Counsel for the petitioners that the Respondents have failed to establish their title over the disputed property before the Civil Court and also failed to get injunction to the effect that the respondents from the disputed plot and, therefore, in the light of the Judgment and Decree dated 13.5.2009, the order passed by the Executive Magistrate of handing over the possession of the disputed property to the respondents is bad in the eye of law. It is contended that the order passed by the Civil Court is liable to be given precedence over the order of Criminal Court and the Revisional Court has failed to take into consideration this aspect of the matter, therefore, the order passed by the Revisional Court as well as the Executive Magistrate are liable to be quashed and set aside. It is also contended by learned Counsel for the petitioners of the land in question since long and, therefore, the Executive Magistrate had erred in directing to give possession of the land in question to the respondents. 6. It is also contended by learned Counsel for the petitioners of the land in question since long and, therefore, the Executive Magistrate had erred in directing to give possession of the land in question to the respondents. 6. Per contra, learned Public Prosecutor as well as the Respondent No. 2 present in person, have'supported the order passed by the Courts below and argued that no case for interference under inherent Jurisdiction of this Court is made out. Hence, this Criminal Miscellaneous Petition is liable to be dismissed. 7. Heard learned Counsel for the parties, perused the impugned orders and the material available on record. 8. Section 145 Cr.P.C. reads as under:- "145. Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) Whenever an Executive Magistrate is satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local Jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute. (2) For the purposes of this Section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (2) For the purposes of this Section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute : Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a Police Officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the Legal Representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the Legal Representative of deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107." 9. As per sub-section (4) of Section 145 Cr.P.C., the Executive Magistrate without reference to the merits or the claims of any of the parties to a right to posses the subject of dispute, has to decide which of the party was, at the date of order made by him under sub-section (1) of Section 145 Cr.P.C., in possession of the disputed property. If it appears to the Executive Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of the Police Officer or other information was received by the Magistrate or after that date and before the date his order under sub-section (1) of Section 145 Cr.P.C., then he has to treat that party had been in possession on the date of his order under sub-section (1) of Section 145 Cr.P.C. 10. In the present case, the Executive Magistrate has taken note of the fact that in relation to the incident dated 4.9.1978, Brij Lal, father of the Respondents No. 2 and 3, had registered an F.I.R. and in that F.I.R., a charge-sheet was filed against the petitioners for the offence punishable under Section 447 I.P.C. and the petitioners were put to trial. Ultimately, the Trial Court i.e. Judicial Magistrate, First Class, Parbatsar vide judgment dated 26.2.1982 convicted the petitioners for the offences punishable under Section 447 I.P.C. while concluding that the petitioners had committed criminal trespass over the land belonging to the father of the Respondents No. 2 and 3. From this fact itself, it is clear that on the day, when the complaint was filed under Section 145 Cr.P.C. i.e. 4.9.1978, the father of the petitioner was forcibly dispossessed from the disputed property by the petitioners. 11. As per the proviso to sub-section (4) of Section 145 Cr.P.C., the father of the Respondents No. 2 and 3 was treated in possession of the disputed property on the date the order under sub-section (1) of Section 145 Cr.P.C. passed by the Executive Magistrate. It is noticed that the order passed by the Additional District Judge (Fast Track), Parabatsar on 13.5.2009 in an Appeal filed by the petitioners was not pressed into service by the petitioners, through the same was produced before the Revisional Court, however from the perusal of Order dated 13.5.2009, It is clear that while deciding the Issue No. 1, the Appellate Court has affirmed the finding of the Trial Court and has held the petitioners have failed to prove their title over the disputed property and, therefore, they are not entitled to get any declaration in respect of the said property. It is true that vide same judgment, the Appellate Court has refused to pass injunction order in favour of the respondents for restraining the petitioners from disturbing their possession over the disputed property, but that finding will not help the petitioners because it is very well proved that on the day, when the Executive Magistrate has passed the order under sub-section (1) of Section 145 Cr.P.C., the father of Respondents No. 2 and 3 was deemed to be in possession of the disputed property. 12. 12. In view of the above discussion, this Court finds that the Executive Magistrate has not committed any illegality in passing of the Order dated 6.1.2014 and the Revisional Court has also rightly affirmed the same. Hence, no case for interference is made out. 13. The Criminal Miscellaneous Petition is dismissed. The Stay Petition is also dismissed.Petition dismissed. *******