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Madhya Pradesh High Court · body

2016 DIGILAW 620 (MP)

Sarita Soni v. Richa Kejariwal

2016-07-27

RAJENDRA MAHAJAN

body2016
ORDER : RAJENDRA MAHAJAN, J. 1. The petitioner has preferred the petition under Section 482 of the Cr.P.C. being aggrieved by an order dated 16.09.2014 passed by the First Additional Sessions Judge, Shahdol in Criminal Revision No. 52/2013 titled as Suresh and others v. Richa Kejriwal (Smt.) and another, whereby the learned Judge has dismissed an application dated 02.08.2013 filed by the petitioner praying to implead her in the revision as a party. 2. The relevant and necessary facts for adjudication of the petition are thus:-- "2.1 Respondent No. 1 Richa Kejriwal filed two applications on 10.06.2010 one under Section 145/146 Cr.P.C. and another under Section 146 (2) Cr.P.C. before the Court of Sub Divisional Magistrate, Sohagpur of district Shahdol (for short ''the Court'') against respondent Nos. 2 to 5 of the petition with the averments that she had purchased a piece of land having an area of 0.40 acre/0.162 hectare (for short ''the land') comprising in survey No. 30 situated in village Gartara of Patwari Halka No. 25 of Sohagpur Tehsil of District Shahdol vide registered sale deed dated 06.07.2009 from its owner Anil Kumar Jain S/o. Shekhar Chand Jain. Later, she got the land mutated in her name in the revenue records. After mutation, the survey number of the land is 30/3. There was a boundary wall around the land which was in a run-down condition. On 05.06.2010, she sent labourers for the construction of a new boundary wall after dismantling the old one. The respondent Nos. 2 to 5 hurled filthy abuses at the labourers and forced them to leave the land without the construction of wall. Respondent No. 2 to 5 have no right or interest in the land at all. A police report was also lodged on her behalf at the concerned police station but the police did not take any preventive action against them. As a result, they got emboldened, and on 06.06.2010 they broke open the lock of the tin-shed erected on the land and took away the articles kept therein. Now they are claiming their ownership disputing her ownership, and they are threatening to dispossess her from the land. Thus, Respondent Nos. 2 to 5 may breach the peace by dispossessing her from the land. Now they are claiming their ownership disputing her ownership, and they are threatening to dispossess her from the land. Thus, Respondent Nos. 2 to 5 may breach the peace by dispossessing her from the land. Upon these facts, respondent No. 1 prayed that till the final decision over the said dispute the land be attached and the possession of it be temporarily handed over to an impartial person. In support of the applications, she has filed her own affidavit. 2.2 Upon the aforesaid applications, a Criminal Case No. 11/2010 titled Richa Kejriwal v. Suresh Soni @ Saraf and others was registered in the Court. 2.3 On 10.06.2010, the SDM first passed a preliminary order under Section 145(1) Cr.P.C. and later passed a detailed order under Section 146(1) Cr.P.C., whereby he attached the land and directed the SHO, Police Station Kotwali to hand over temporarily possession of the land to an impartial person and submit the compliance report by 22.06.2010. 2.4 Having passed the afore stated order, the S.D.M. received the evidence of disputant parties and heard their arguments. On 11.06.2013, the final order was passed by him. Having analyzed the evidence on record, he held that two months prior to the passing of the order under Section 145(1) Cr.P.C., respondent No. 1 had actual possession over the land. Upon the said factual findings, he ordered to hand over the possession of the land to her and passed an injunction against respondent Nos. 2 to 5 restraining them not to interfere with the peaceful possession of respondent No. 1 over the land until a Court of competent jurisdiction passes an order in their favour. 2.5 Feeling aggrieved by the afore stated order, respondent Nos. 2 to 5 filed Criminal Revision No. 52/13 under Sections 397 and 399 before the Second Additional Sessions Judge, Shahdol. (for short the ''revisional court''). 2.6 During the pendency of the revision, the petitioner has filed an application dated 02.08.13 before the revisional court with a prayer to implead her in the revision as a party on the ground that she is the daughter of late Ram Kumar and the sister of respondent No. 2 Suresh and respondent No. 4 Yadavendra. 2.6 During the pendency of the revision, the petitioner has filed an application dated 02.08.13 before the revisional court with a prayer to implead her in the revision as a party on the ground that she is the daughter of late Ram Kumar and the sister of respondent No. 2 Suresh and respondent No. 4 Yadavendra. Her father and respondent No. 4 had instituted a Civil Suit No. 53-A/04 (for short ''the suit'') in the court of Civil Judge Class-I at Shahdol against Samudribai and others in which Anil Kumar Jain, from whom respondent No. 1 alleges to have purchased the land, was one of the respondents. The suit was filed for declaration and cancellation of the registered sale-deed with regard to the land bearing new survey No. 30 admeasuring one hectare. The land in dispute in the present case is a part of the aforesaid survey number and the area. During the pendency of the suit, her father Ram Kumar passed away. Thereupon, his legal representatives were brought on record in place of him. She was one of them. Vide the judgment and decree dated 07.11.2005, the suit was dismissed. Feeling aggrieved by the dismissal of the suit, she and other plaintiffs of the suit filed an appeal being old No. 56-A/09 and new No. 27-A/09 (for short ''the Appeal''). During the pendency of the appeal before the Second Additional District Judge, Shahdol (for short ''the appellate court''), the appellants/plaintiffs, except her, and the respondents/defendants having entered into a conspiracy filed a compromise petition under Order 23 Rule 1 r/w Section 151 C.P.C. stating that the parties have arrived at an out-of-court settlement in respect of the land, therefore, the appellants/plaintiffs be permitted to withdraw the appeal. Whereupon, vide order dated 06.07.2009, the appellate court granted permission to the appellants/plaintiffs for withdrawal of the appeal and the same was dismissed as withdrawn. Quite a later, she came to know that her signature was forged on the compromise petition. Thereafter, on 21.05.2010 she filed an application under Section 151 C.P.C. before the appellate court mentioning the aforesaid facts and praying for restoration of the appeal and decision on merits as she has been deprived by the other appellants/plaintiffs from her share in the land. Her application is pending before the appellate court. In order to protect her interest in the land, she is a necessary party in the revision. Her application is pending before the appellate court. In order to protect her interest in the land, she is a necessary party in the revision. In support of the application, she has filed her own affidavit. 2.7 Respondent No. 1 Richa Kejriwal has filed a written-reply to the petitioner's application. In her reply, she has denied all the allegations made by the petitioner in her application. She has stated that she was not a party either to the suit or the appeal. She purchased the land after the dismissal of the appeal from Anil Kumar Jain who was party to the suit and the appeal. She has also stated that the petitioner had never disputed her possession over the land as she lives with her husband in village Chachi of district Anuppur as per her affidavit. Hence, she had not made her party in the case before the S.D.M Court. She has further stated that the real dispute over the land is between her and respondent Nos. 2 to 5. Therefore, she is not a necessary party. Upon these averments, she has prayed for the dismissal of the petitioner's application. 2.8 As per record, respondent Nos. 2 to 5 and respondent No. 6/State have not replied to the petitioner's application in writing. 2.9 Vide order dated 16.09.2014, which is impugned herein, the revisional court dismissed the petitioner's application holding that there is no evidence on record to hold that she had ever been in actual possession over the land as she is a resident of village Chachi of district Anuppur. Hence, she is not a necessary party in the revision. 2.10 Hence, this petition by the petitioner." 3. Having referred to the various documents on record, learned counsel for the petitioner submitted that the entire land of survey No. 30 of village Gartara, the land in dispute is a part of the said survey number, was of the ownership of the petitioner's father Ram Kumar and he had exclusive possession over the land of said survey Number. That is why, after his death she was made a party in the suit and the appeal, as she is one of his legal representatives. The appellants/plaintiffs and the respondents/defendants having entered into a conspiracy filed the compromise petition with her forged signature and thus she has been deprived by them of her share in the said land. That is why, after his death she was made a party in the suit and the appeal, as she is one of his legal representatives. The appellants/plaintiffs and the respondents/defendants having entered into a conspiracy filed the compromise petition with her forged signature and thus she has been deprived by them of her share in the said land. In order to protect her interest, she is a necessary and proper party in the revision. Thus, the revisional court has erred in law and on facts dismissing her application vide the impugned order. Under the circumstances, the impugned order be set aside and the revisional court be directed to implead her as a party in the revision. 4. Per contra, learned counsel for respondent No. 1 Richa Kejriwal submitted that vide the judgment and decree dated 07.11.2005, the suit was dismissed on the grounds that the plaintiffs/appellants have failed to prove that the suit land was of the ownership of Ram Kumar and he and they had possession over it. He submitted that since the appeal arising out of the suit was dismissed on the ground of withdrawal by the plaintiffs/appellants, the judgment passed in the suit holds the field till the appeal is restored by the appellate court upon the petitioner's application. Therefore, the petitioner does not now claim her share in the land and the documents referred to by learned counsel for the petitioner with regard to the ownership and possession of her father over the land have no evidentiary value at present. After referring to the expression ''requiring the party concerned'' appearing in Sub-section (1) of Section 145 and the provisions of Sub-section (4) of Section 145 Cr.P.C., he submitted that the parties to the proceedings under Section 145 Cr.P.C. will be those persons who claim actual possession on the subject of dispute. The petitioner does not claim possession over the land. On the contrary, she claims her share in the land as one of the coparceners along with others. Hence her possession over the land at the most may be legal possession but not actual possession. As per her affidavit, she is a permanent resident of village Chachi of district Anuppur, whereas the land is in Shahdol district. The contents of her affidavit also prove that she does not claim her actual possession over the land. Hence her possession over the land at the most may be legal possession but not actual possession. As per her affidavit, she is a permanent resident of village Chachi of district Anuppur, whereas the land is in Shahdol district. The contents of her affidavit also prove that she does not claim her actual possession over the land. Under the circumstances, she is not a necessary party in the revision. Hence, the revisional court has rightly dismissed her application vide the impugned order. 5. Learned counsel for respondent No. 2 has supported the arguments raised on behalf of the petitioner. 6. Learned Panel Lawyer has not argued either in support or against the impugned order stating that the State/respondent No. 6 is a formal party. 7. I have considered the rival submissions raised on behalf of the parties by their respective counsel and perused the material on record. 8. First, it will be seen what is the object of initiation of proceedings under Sections 145 and 146 Cr.P.C. by the Executive Magistrate. Both the Sections occur in Chapter X Cr.P.C. The heading of the chapter is ''maintenance of public order and the tranquility''. Therefore, the main purpose of the provisions of the aforesaid Sections is to prevent the warring parties from breaching the peace, to maintain law and order and to find out as to who is/was in actual possession of the subject matter of the dispute as per the provisions of 145 (4) Cr.P.C. after receiving their evidence in accordance with law. 9. Now the point for consideration before me is whether the petitioner is a necessary party in the revision? 9. Now the point for consideration before me is whether the petitioner is a necessary party in the revision? The answer lies in the provisions of sub-section (1) and sub-section (4) of Section 145 Cr.P.C., which are reproduced below:-- Sub-section (1) 145 Cr.P.C. "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 fact of actual possession of the subject of dispute." (Emphasis is added by me) Sub-section (4) 145 Cr.P.C. "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).'' (Emphasis is added by me) 10. If both the Sections are jointly read with impetus on the underlined portion of the provisions by me, it appears that the parties to the proceedings under Section 145 Cr.P.C. are those persons who are claiming actual possession over the subject matter of dispute or who was in possession of the subject matter of dispute on the date of the order or who is wrongfully dispossessed within two months prior to the report. While deciding the dispute, the Executive Magistrate cannot decide either title to the property in dispute or right of possession over it or legal possession over it supported by title as per the mandate enshrined in the language of 145 (4) Cr.P.C. From perusal of the application dated 02.08.2013 submitted by the petitioner before the revisional court, I find that she does not claim her actual possession over the land but she simply asserts her share in the land of which she alleges to have been deprived because of the other plaintiffs/appellants' conspiracy with defendants/respondents of the appeal. Under the circumstances, she is not a necessary party in the revision. The matter may be examined from another angle/aspect. As per the judgment and decree dated 07.11.2005 passed in the suit, in which the petitioner is one of the plaintiffs, the suit was dismissed on the ground that it is not proved by the plaintiffs that Ram Kumar, father of the petitioner, had ever been Bhooswami of the land and that he had possession over it. The appeal arising out of the suit was dismissed on the ground of withdrawal of the appeal by the plaintiffs/appellants. Therefore, the petitioner's share in the land shall remain virtually non-existent till the appeal is restored upon her application and the appellate court would reverse the judgment and decree of the trial Court on merits. Till that eventuality, she has no locus standi in respect of the land. In this view of the matter, I am of the firm opinion that the petitioner is not a necessary party in the revision. Therefore, the revisional court has not committed any error in law or on facts by dismissing the petitioner's application. 11. In view of the above discussion, this petition is misconceived and is hereby dismissed. 12. Accordingly, this petition is finally disposed of.