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2020 DIGILAW 507 (MP)

Mathura And Others v. Ramkripal And Others

2020-05-06

RAJENDRA KUMAR SRIVASTAVA

body2020
JUDGMENT Rajendra Kumar Srivastava, J. - This petition under Section 482 of Cr.P.C. has been filed by the petitioners/non-applicant to set aside the order dated 09.08.2018 passed by Additional Sessions Judge, Pawai Distt. Panna MP in Criminal Case No. 56/2017 setting aside the order dated 12.09.2017 passed by SDM, Pawai in case No. 19/Section 145/2015 in which on the application filed by the respondent No.1 under Section 145, the SDM passed the order in favour of the petitioner/non-applicant and to the context of disputed land, it is directed that the respondent did not interfere in the possession of petitioners/non-applicant. 2. According to case, the respondent No. 1-Ramkripal submitted an application under Section 145 of Cr.P.C. before the SDM Pawai on 22.11.2016. It is alleged by him that the he is owner of land Khasra Nos. 2/1, 2/2, 3, 4/1, 4/2, 145/1, 145/2, 206, 207, 231, 232, 233, 239, 226, 251 total ad-measuring area 5.25 hectare situated at gram Jhimari. The aforesaid land are registered in the name of Deshrani @ Girja Devi in revenue record. He further stated that after the death of Deshrani the respondent No. 1 and his brother are in possession of that land since 27-28 years. Petitioners/non-applicants are interfering in the possession of land in khasra No. 2/1, 2/2, 3, 4/1, 4/2. They are creating nuisance to take possession of said land, so there is probability to disturb peace by them, therefore, proceeding be initiated. Thereafter, considering the allegation and facts of the case, Sub Divisional Magistrate passed preliminary order. Both the parties adduced their evidence and it is found that petitioners/non-applicants are in possession of the disputed land then the SDM affirmed the possession of petitioner and directed the respondents not to interfere in the possession of petitioner. Thereafter, the respondent party filed a criminal revision against the order dated 12.09.2017 and the learned additional Sessions Judge allowed the same by passing the order dated 09.08.2018. 3. Learned counsel for the petitioners submits that they the learned Revisional Court erred in appreciating the fact that the petitioners/non-applicant have purchased the disputed land through the legal heirs of the deceased Girja Devi by a registered sale deed and they are also in possession of said land. 3. Learned counsel for the petitioners submits that they the learned Revisional Court erred in appreciating the fact that the petitioners/non-applicant have purchased the disputed land through the legal heirs of the deceased Girja Devi by a registered sale deed and they are also in possession of said land. There is no material available on the record upon which the learned Additional Sessions Judge can interfere on the order passed by the SDM, so order of learned Additional Sessions Judge is erroneous and unjustifiable. Therefore, learned counsel for the petitioners/non-applicants prays for allowing this petition by setting aside the order dated. 09.08.2018. 4. Learned counsel for the respondents opposes the submissions made by learned counsel for the petitioners and submits that the order passed by the learned Additional Sessions Judge is based upon the fact and legal principle of law, therefore, no interference is warranted in the impugned order. 5. Heard both the parties and perused the records. 6. Before embarking on the fact of the case, I would prefer to quote the relevant provision i.e. Section 145 of Cr.P.C. "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 fact 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 subsection (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 sub- section (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 subsection (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 a 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 pending before him, is subject 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. 7. Further, it would appropriate to mention the findings para's of order dated 09.08.2018 passed by learned ASJ which are also reproduced as under:- 8. On reading of the same, it is evident that learned Additional Sessions Judge did not appreciate the evidence about factum of possession under Section 145 of Cr.P.C. rather the Court has given findings regarding title of disputed land and declared all the heirs of Bhagwan Das as owner of disputed land. On reading of the same, it is evident that learned Additional Sessions Judge did not appreciate the evidence about factum of possession under Section 145 of Cr.P.C. rather the Court has given findings regarding title of disputed land and declared all the heirs of Bhagwan Das as owner of disputed land. It is well settled of principle of law that in the proceeding of Section 145 of Cr.P.C., determination of title is immaterial and proceeding of Section 145 of Cr.P.C. is limited to the question as to who was in actual possession on the particular day . In this regard in the case of Jhummamal v. State of M.P., (1988) 4 SCC 452 , the Hon'ble Apex Court has held as under:- "8.........An order made under Section 145 CrPC deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached." 9. Further, in the case of R.H. Bhutani Vs. Mani J. Desai, (1968) AIR SC 1444 , the Hon'ble Apex Court has held as under:- "8. The object of Section 145, no doubt, is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute, regarding an immoveable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under sub-section (1) and thereafter to make an enquiry under sub-section (4) and pass a final order under sub-section (6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties. Under the second proviso, the party who is found to have been forcibly and wrongfully dispossessed within two months next preceding the date of the preliminary order may for the purpose of the enquiry be deemed to have been in possession on the date of that order. The opposite party may of course prove that dispossession took place more than two months next preceding the date of that order and in that case the Magistrate would have to cancel his preliminary order. On the other hand, if he is satisfied that dispossession was both forcible and wrongful and took place within the prescribed period, the party dispossessed would be deemed to be in actual possession on the date of the preliminary order and the Magistrate would then proceed to make his final order directing the dispossessor to restore possession and prohibit him from interfering with that possession until the applicant is evicted in due course of law. This is broadly the scheme of Section 145." 10. After careful reading of the above said pronouncement it is revealed that Section 145 CrPC deals only with the factum of possession of the party as on a particular day not title over the disputed property. The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties 11. Therefore in view of the aforesaid principle laid down by the Hon'ble Apex Court the order dated 09.08.2018 passed by Additional Sessions Judge, Pawai Distt. Panna MP in Criminal Case No. 56/2017 is hereby set aside and case is remanded back to the Revisional Court for fresh adjudication with a direction to pass an order on the basis of possession of the parties after giving adequate opportunity of hearing to both the sides. It is also necessary to be mentioned that in the proceeding of Section 145 of Cr.P.C., the Court cannot pass such type of order of recording the name of person in the revenue record. It is also necessary to be mentioned that in the proceeding of Section 145 of Cr.P.C., the Court cannot pass such type of order of recording the name of person in the revenue record. It is also made clear that this Court has not given any findings on the merits of the case and the learned Revisional Court is free to proceed the case on his own discretion following the spirit of Section 145 of Cr.P.C. Parties are also directed to remain present before the Revisional Court on 16.06.2020 for further proceeding. 12. Accordingly, this petition is hereby disposed of.