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Jharkhand High Court · body

2016 DIGILAW 24 (JHR)

Jagar Nath Pandit v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
ORDER : The second party, of a proceeding under Section 145 of the Code of Criminal Procedure (in short ‘the Code’), has preferred this revision whereas the members of the first party are opposite parties in this case. The petitioner has questioned the legality of the order dated 04.09.2001 passed by 1st Additional Sessions Judge, Singhbhum (East), Jamshedpur in Criminal Revision No.1C of 1991 whereby and whereunder the possession of the petitioner declared by the Executive Magistrate, Jamshedpur vide order dated 20.12.1990 passed in Misc. Case No.1209 of 1981, has been set aside. 2. On the basis of a report submitted by Sonari Police Station about the apprehension of breach of peace with respect to land in question having Holding No.329B/A are 12’ X 18’ in Mohalla- Khuntadih, Sonari, a proceeding under Section 144 of the Code was initiated vide order dated 25.11.1981 against Chandra Mohan Lohar, the first party and Jagar Nath Pandit, the second party and after filing of their respective show causes, the said proceeding was converted into a proceeding under Section 145 of the Code vide order dated 23.01.1982. In the show cause filed at the instance of the first party, it was claimed that the land in question was recorded in the name of Chhabilal Lohar and after his death his widow Sukurmoni inherited the same. The first party was inducted as a tenant by the original land lord but after his death, Sukurmoni inherited the property and her only legal heir Govind Lohar entered into an agreement for sale of the land in question to the first party and put the first party in possession and since then has been coming in possession of the land in question and the second party has got no right, title or interest and possession over the land in question. On the other hand, the case of the second party, as it appears from his show cause that Chhabilal Lohar was the land lord and after his death, Sukurmoni his widow, inherited the said property but the first party never came in possession of the land in question on the basis of the said forged deed i.e. agreement for sale rather the fact is that the second party purchased the land in question on the basis of the power of attorney executed in favour of Archna Singh wife of Ajay Singh by the sole daughter of Sukurmoni namely Josmi and the possession was delivered to him. The land in question was purchased in the name of the wife of the second party namely Rajkishori Devi on 20.12.1984 and since then the second party has been coming in possession over the land. Both the parties were directed to adduce their respective evidence i.e. oral as well as documentary in respect of their claim. The court of Executive Magistrate after hearing both the parties and examining the evidences on record declared the possession of the second party over the land in dispute by order dated 20.12.1990 and restrained the first party from going over the land holding that both the parties have admitted the title of Sukurmoni but the first party has claimed to be in possession on the basis of the deed of agreement prepared and executed in his favour by Govind Lohar, son of Sukurmoni while the second party has claimed the land in dispute on the basis of the sale deed executed by the one Archna Singh, an attorney holder of the daughter of the said Sukurmoni. 3. Aggrieved by the said order, the first party preferred a Criminal Revision no. 1C of 1991. 3. Aggrieved by the said order, the first party preferred a Criminal Revision no. 1C of 1991. The 1st Additional Sessions Judge, Jamshedpur after hearing both the parties and examining the oral and documentary evidence available on record vide impugned order dated 04.09.2001 set aside the order of the revisional court and held that the case is remanded to the lower court of Executive Magistrate with direction to pass fresh order within three months from the date of receipt of the order keeping in view the fact as to whether there is still any existence of apprehension of breach of peace between the parties and also to decide the factum of possession on the basis of the material available on record and if the court feels it necessary, should make local inspection of the land to come to the positive conclusion of the possession of the parties of the proceeding. Hence, the present revision by the second party. 4. It appears from the record that while admitting this revision application, notice was issued to the opposite party and the operation of the order dated 04.09.2001 was stayed vide order dated 29.01.2002 but subsequently on an interlocutory application filed at the instance of the petitioner that the opposite party no.2- Chandra Mohan Lohar died during pendency of this revision application on 20.07.2005 his name was deleted and his heirs and legal representatives were impleaded as a party and vide order dated 14.06.2012 notices were issued for their appearance but as nobody appeared on behalf of those substituted legal heirs steps for substituted services i.e. publication of notice in widely circulated Hindi Newspaper was taken and even after the news which was published in Newspaper none of the substituted heirs and legal representatives ever appeared in this case. Thereafter, this revision was heard in absence of the opposite parties. 5. Learned counsel appearing for the petitioner assailing the order impugned as bad in law and perverse, seriously contended that the court below erred in remanding the case to the court concerned without applying judicial mind and also failed to consider that the order of the Executive Magistrate was passed in the year 1990 and after almost 11 years, the matter was remanded to the court concerned with direction to examine whether any apprehension of breach of peace still exists between the parties or not. Relying upon a judgment of the Hon’ble Supreme Court in the case Suraj Lamp & Industries Private Limited(2) Versus State of Haryana; (2012) 1 SCC 656 learned counsel submitted that Hon’ble Supreme Court has clearly held that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed) and in the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property get transferred and by merely executing an agreement to sale, no right, title or interest shall be conferred or transferred of any immovable property. It was also submitted that the first party was inducted in the land in dispute as tenant and his possession was only the permissive possession and not actual possession and there is sufficient evidence on record to show that by executive a power of attorney the daughter of Sukurmoni had given right to the attorney holder to execute the sale deed who had in turn executed the sale deed in favour of wife of this petitioner and delivered the possession also. But the court below without appreciating the evidence in right perspective set aside the order of the Executive Magistrate, who had declared the possession of the petitioner over the land in dispute. Hence, the order impugned deserves to be set aside. 6. As stated above, nobody appeared on behalf of the opposite parties but learned counsel representing the State submitted that the court below after examining the evidence, rightly remanded the matter to the court below to decide the matter afresh. Court sitting in revision, has a very limited jurisdiction and cannot re-appreciate the evidence but as the matter is pending since 1990, it would be in the interest of justice to direct the parties to get their dispute resolved by a competent court of civil jurisdiction. 7. It is true that under revisional jurisdiction, this Court has a limited power and cannot re-appreciate the evidences but even then I have gone through the evidence available on record from the lower court records and I find that both sides had tried to establish their possession relying upon certain documents and oral evidences. 7. It is true that under revisional jurisdiction, this Court has a limited power and cannot re-appreciate the evidences but even then I have gone through the evidence available on record from the lower court records and I find that both sides had tried to establish their possession relying upon certain documents and oral evidences. The first party, of the proceeding, has claimed his possession over the land in dispute on the basis that he was inducted as a tenant in the building constructed over the land in dispute and his possession continued after execution of the agreement of sale by the son of Sukurmoni, widow of the original land lord. While the petitioner, who was second party in the original proceeding, has been claiming his possession on the basis of the sale deed executed in favour of the wife of the petitioner but none of the party has produced any document to show his possession or the witnesses examined on their behalf have testified about the actual possession of their respective parties. The courts below have treated the evidence of witnesses as incidental and the documents as of conflicting import. Admittedly, the proceeding was initiated in the year 1990 and this case was taken up for final hearing in the fag end of year 2015 i.e. almost 25 years of initiation of proceeding and there is absolutely nothing on record to show that any apprehension of breach of peace still exists between the parties. Even the learned counsel appearing for the petitioner fairly submitted that there is nothing on the record or even to his knowledge that still there is any apprehension of breach of peace between the parties. Obviously, provision of Section 144 of the Code deals with urgent case of nuisance or apprehended danger, the provision of Section 145 deals with a situation when an apprehension of breach of peace exists or continues between parties. If, however, if a proceeding under Section 145 of the Code remains pending for more than twenty four years, as in the instant case, without any fresh allegation of an apprehension of breach of peace, I feel that such a proceeding should not be allowed to continue for such a long period without any report or evidence of continuing apprehension of breach of peace. In the meantime, the parties will have ample opportunity to go to a civil court of competent jurisdiction get their right, title or interest, as also their claim of possession decided finally. 8. Without entering into the merit of this case, this application is, hereby, disposed of with liberty to both the parties to raise the issues/matters before the competent civil court/court in respect of their title and possession. Since the title is also involved in this case and as such it would be appropriate to get the controversy decided and thrashed on merit once forever by a competent court.