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2019 DIGILAW 457 (HP)

Prithi Singh v. Jagdish Chand

2019-04-24

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioner under Section 482 Cr.P.C. against order, dated 25.04.2011, passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. and also against order dated 16.04.2014, passed by learned Sessions Judge, Hamirpur, H.P. 2. As per the petitioner, he made a complaint to police of Police Station Barsar, District Hamirpur and contended that respondent Nos. 1 to 3 herein demolished a brick wall forcibly and illegally. Pursuant to his complaint, FIR No. 152 of 2007, dated 11.08.2007, was registered against respondents No. 1 to 3. Precisely, the petitioner contends that the police did not carry the investigation properly and ultimately prepared a cancellation report. The petitioner filed objections against the said report before the learned Trial Court and alleged that the revenue staff wrongly and illegally converted the karu kans and thereby caused deficiency of land. The learned Trial Court, vide its order dated 25.04.2011, accepted the cancellation report and the objections filed by the petitioner were dismissed. Feeling aggrieved and dissatisfied, the petitioner filed a revision petition before the learned Revision Court, assailing the order passed by the learned Trial Court dismissing his objections and accepting the cancellation report, but the same was also dismissed on the premise that during the course of investigation, police got the land demarcated from revenue experts and the wall was found over the land of the accused (respondents No. 1 to 3 herein), hence the present petition preferred by the petitioner. 3. Heard. The learned Counsel for the petitioner has argued that the cancellation report was prepared by the police without properly investigating the matter and the learned Trial Court has wrongly, in a cursory way, accepted the cancellation report. He has further argued that even the learned Revisional Court, without application of mind, dismissed his revision petition. He has argued that the police did not take into consideration the fact that by whom the wall was forcibly demolished. This facet has not been considered by the learned Trial Court and by the learned Revisional Court. He has argued that the present petition be allowed and the impugned orders passed by the learned Courts below be quashed and set aside. The matter be investigated afresh and respondent Nos. This facet has not been considered by the learned Trial Court and by the learned Revisional Court. He has argued that the present petition be allowed and the impugned orders passed by the learned Courts below be quashed and set aside. The matter be investigated afresh and respondent Nos. 1 to 3 (accused persons) be punished for the commission of the offences punishable under Sections 447, 427 read with Section 34 IPC. On the other hand, learned Senior Counsel for respondent Nos. 1 to 3 has argued that the demarcation was got conducted by the police and the demarcation report has not attained finality. He has further argued that the demarcation report has been accepted by both the parties and the wall qua which the petitioner is raising objection fell in the land of respondent Nos. 1 to 3. He has argued that the present is a dispute of civil nature and no illegality has been committed by the learned Courts below. He has argued that the learned Courts below have taken the correct view after appreciating the facts and law correctly. He has prayed that in the above backdrop, the petition be dismissed. The learned Senior Counsel for respondent Nos. 1 to 3 has argued that the instant petition is not maintainable. In order to draw lateral support to what has been argued by the learned Senior Counsel, he has placed reliance on the following judicial pronouncements: 1. Amar Nath and Others vs. State of Haryana and Others, (1977) AIR SC 2185 2. Deepti alias Arati Rai vs. Akhil Rai and Others, (1995) SCC (Cri) 1020 4. In rebuttal, the learned Counsel for the petitioner has argued that it is not the case of respondent Nos. 1 to 3 that they were owners of the wall and this fact is clear from the record of the present petition. In these circumstances, the police were duty bound to investigate that the wall of the petitioner was demolished by force and in that eventuality the result would have been different. He has prayed that in view of the above, the petition be allowed and the matter be investigated afresh and the orders of the learned Courts below be quashed and set aside. 5. I have heard the learned counsel for the petitioner, learned Senior counsel for respondent Nos. 1 to 3, learned Additional Advocate General for respondent Nos. He has prayed that in view of the above, the petition be allowed and the matter be investigated afresh and the orders of the learned Courts below be quashed and set aside. 5. I have heard the learned counsel for the petitioner, learned Senior counsel for respondent Nos. 1 to 3, learned Additional Advocate General for respondent Nos. 4/State and gone through the record. 6. Noticeably, demarcation had been carried out on the spot in presence of the parties and the wall, which was allegedly demolished, came on the land of Shri Jagdish Chand (respondent No. 1 herein). In fact, petitioner, Shri Prithi Singh, is owner of land having khasra No. 199 and respondent No. 1, Shri Jagdish Chand, is owner of adjoining land, having khasra No. 198. It is on record that the petitioner got registered FIR No. 152 of 2007, dated 11.08.2007 against respondents No. 1 to 3 and he alleged that the said respondents demolished the wall, which was on his land (on khasra No. 199). After the registration of the FIR, police got the spot demarcated from revenue expert and the wall in question was found on the land of respondent Nos. 1 to 3. Thus, the police prepared a cancellation report and the petitioner preferred objections, which were mainly based on order of correction, dated 24.08.2009, passed by Settlement Collector, Kangra Division, and demarcation report dated 23.01.2012 given by Shri Lakshmi Dutt Thakur, Tehsildar. The documents, whereupon the petitioner based his objections against the cancellation report have no effect on the cancellation report, as vide correction order dated 24.08.2009, correction qua karu kans of northern and southern boundary were made and neither the total length of karu kans changed, nor there was any change in the area. The learned Courts below have rightly observed that there seems to be a boundary dispute of civil nature inter se the parties, efficacious remedy whereof is damages or any other relief. This Court is also of the opinion that there exists a boundary dispute between the parties and nothing emanates from the record that demarcation dated 23.01.2012 has attainted finality or not. 7. This Court is also of the opinion that there exists a boundary dispute between the parties and nothing emanates from the record that demarcation dated 23.01.2012 has attainted finality or not. 7. The learned Counsel for respondents No. 1 to 3 has placed reliance upon a decision of Hon'ble Supreme Court rendered in Amar Nath and Others vs. State of Haryana and Others, (1977) AIR SC 2185, wherein vide para 3 the Hon'ble Supreme Court has observed as under: "3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of S 397 of the 1973 Code the inherent powers contained in S. 482 would not be available to defeat the bar contained in S. 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Curt already possessed. A harmonious construction of Ss. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S. 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers." 8. In Deepti alias Arati Rai vs. Akhil Rai and Others, (1995) SCC (Cri) 1020, the Hon'ble Supreme Court has held that second revision after dismissal of the first one by the Sessions Court not maintainable and inherent power cannot be utilized for exercising powers expressly barred by the Code. 9. In view of the above cited judgments, the learned Senior Counsel for respondent Nos. 1 to 3 tried to question the maintainability of the petition. Certainly, it is settled law that second revision after dismissal of the first one is not permissible under the law. However, the High Court can exercise power under Section 482 to set right the perversity in the orders passed by the learned Courts below. 10. 1 to 3 tried to question the maintainability of the petition. Certainly, it is settled law that second revision after dismissal of the first one is not permissible under the law. However, the High Court can exercise power under Section 482 to set right the perversity in the orders passed by the learned Courts below. 10. In view of what has been discussed hereinabove, this Courts finds that the dispute is of civil nature inter se the parties and the learned Courts below have rightly dealt with the matter. It would be apt for the petitioner to avail efficacious remedy, if available under the law. This Court does not deem it fit and proper to interfere with the impugned order. Accordingly, the petition, which is devoid of merits, deserves dismissal and is dismissed. Pending applications, if any, shall also stands disposed of.