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2019 DIGILAW 689 (GAU)

Sarala Begum v. Ratika Begum

2019-06-03

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Heard the Mr. I.A. Talukdar, learned counsel for the petitioner as well as Mr. S. Chouhan, learned counsel appearing for and on behalf of the Opposite Parties and Mr. A. Tiwari, learned Amicus Curiae, appointed by this Court to conduct the case for and on behalf of the opposite parties. 2. By filing this petition u/s. 482 of the Cr.P.C. the petitioner has challenged the order dated 23.03.2012, passed by the learned Sessions Judge, Darrang at Mangaldoi in Criminal Revision No. 27(D-2)11, whereby the Court has set aside the order passed by the Court of learned ADM, Darrang at Mangaldoi in Misc. Case No. 439/2010, u/s.145 Cr.P.C. 3. A brief narration of facts is that the present petitioner filed a petition before the learned ADM, Darrang at Mangaldoi, u/s.145/146 Cr.P.C. claiming that she is in lawful possession of the disputed land mentioned in the petition by way of inheritance after the death of her husband. But on 16.07.2010, 03.08.2010 and 05.08.2010, the opposite parties tried to dispossess the petitioner from the said land but due to intervention of the family members and local people, the opposite parties were not able to dispossess the petitioner. 4. The learned trial Court, on the petition so made, drew up a proceeding u/s.145 Cr.P.C. and by the order dated 07.02.2011 also attached the property u/s.146(1) Cr.P.C. and both the parties were prohibited from entering into the disputed land. The aforesaid order was challenged by the opposite parties before the court of learned Sessions Judge, Darrang at Mangaldoi, which was registered as Criminal Revision No. 27(D-2)11 and the learned Revisional Court by its order dated 23.03.2012, set aside the order dated 07.02.2011, with an observation that the aggrieved party my approach the Civil Court for proper relief. 5. Challenging the aforesaid order, the present petition has been preferred by the original petitioner of the said proceeding. It is to be noted that as the second revision does not lie against the order of the Revisional Court, so the petitioner has filed the present petition u/s. 482 Cr.P.C. to interfere into the order. 6. I have perused the documents and the impugned order of the Court. 7. It is to be noted that as the second revision does not lie against the order of the Revisional Court, so the petitioner has filed the present petition u/s. 482 Cr.P.C. to interfere into the order. 6. I have perused the documents and the impugned order of the Court. 7. So far as the case is concerned, it appears that the present petitioner in her petition before the trial Court has mentioned that she was occupying and enjoying the schedule land by paying regular revenue but the opposite parties, on the pretext of other, trying to dispossess her from the said lawful occupation and enjoyment. On 16.07.2010, 03.08.2010 and 05.08.2010, the opposite parties repeatedly tried to dispossess her but could not succeed due to intervention of the local people. 8. On the other hand, the learned Revisional on the basis of the impugned order of the trial Court and the police report, it was found that the present petitioner Sarala Begum and the opposite party No. 1 Ratika Begum are the wives of late Abul Molla and both of them are in possession of the disputed land, but due to certain disputes, the respondent wife is trying to dispossess the petitioner. The police report does not reflect any such breach of peace and tranquility in the area and says that it is simply a dispute between the private parties and the matter does not reflect breach of peace and tranquility in the locality, to attach the property between the parties and the learned Revisional Court, on the basis of the aforesaid documents and findings, quashed and set aside the attachment order dated 07.02.2011, with an observation that the aggrieved party may approach the Civil Court for proper relief. 9. Now the things to be noted that although the Revisional Court has set aside the impugned order dated 07.02.2011 pertaining to Misc. Case No. 439/2010, but the learned Court has not quashed the entire proceeding for which the said proceeding still survives on record. It is also to be noted that subsequent to the said order dated 07.02.2011, the Court has also passed another dated 31.05.2011, for harvesting the crops on the disputed land by third person and appointed the concerned Gamburah as a receiver of the harvested crops and the next date was fixed on 30.06.2011. It is also to be noted that subsequent to the said order dated 07.02.2011, the Court has also passed another dated 31.05.2011, for harvesting the crops on the disputed land by third person and appointed the concerned Gamburah as a receiver of the harvested crops and the next date was fixed on 30.06.2011. The aforesaid order and the subsequent proceeding is neither challenged nor quashed and set aside. 10. The learned Revisional Court has held that in absence of specific police report and other materials on record and also in view of the private dispute between the parties, where the possession of the parties not at all disputed, such an attachment order is bad in law. 11. Now the facts to be noted that although the observation of the learned Revisional Court may be correct but provision of Section 146(1) Cr.P.C. provides that such an order take the shape of interlocutory one, as the same can be vacated by the trial Court and attachment order can be withdrawn when the Magistrate is satisfied. In that view of the mater, the other side/respondent to whom notice was issued, was in a position to assail such an order of attachment and the learned trial Court, after hearing the parties, was in a position to vacate such order. In view of provision, no revision will lie against such interlocutory order, where the parties have the scope to approach against such order so passed by the trial Court, u/s. 146(1) Cr.P.C. for vacation, alteration, etc. 12. Taking into note all above, it can be held that the order passed by the Revisional Court is liable to be interfered. Accordingly the present petition is allowed and the entire matter is referred to the learned trial Court to decide the matter afresh, having regard to the submission made by the learned counsel for both the parties. The concerned party may file necessary petition for vacation/alteration of impugned order dated 07.02.2011 and the learned trial Court will consider and dispose the same in accordance with law. 13. With the above observation, the matter stands disposed of. 14. This Court appreciate the assistance rendered by Mr. A. Tewari, learned Amicus Curiae while conducting the case and the Gauhati High Court Legal Services Authority is hereby directed to provide him a sum of Rs. 7,000/- (Rupees seven thousands) only as remuneration.