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2021 DIGILAW 2202 (RAJ)

Bhim Singh v. State of Rajasthan

2021-11-22

PANKAJ BHANDARI

body2021
ORDER 1. Petitioner has preferred this Criminal Miscellaneous Petition aggrieved by order dated 29.09.2021 passed by learned Additional District & Sessions Judge, Chirawa, District Jhunjhunu, whereby Criminal Revision Petition filed by the petitioner was rejected and the order dated 09.06.2021 passed by Sub Divisional Magistrate, Chirawa, District Jhunjhunu in Criminal Case No.01/2021, was affirmed. 2. It is contended by counsel for the petitioner that petitioner vide agreement to sale dated 10.03.1991 purchased the disputed plot from Harlal and was in possession since then. It is also contended that in all the sale deeds of neighbouring plots, plot of petitioner is shown. It is further contended that in the year 2015, Butiram filed a suit and a Commissioner was appointed by the Court. As per the Commissioner's report, petitioner was in possession of the disputed plot. It is also contended that petitioner filed a suit for specific performance but the same was dismissed and an appeal against the dismissal order is pending before the Court. 3. It is further contended that Respondent No.2 purchased the disputed plot vide registered sale deed dated 05.11.2020 from Butiram. In the sale deed itself, it is mentioned that there is no construction on the plot. It is contended that Respondent No.2 filed a Civil Suit for injunction and a status quo order was passed by the Court restraining the parties from raising any construction on the disputed property. 4. It is argued that a receiver cannot be appointed when the matter is pending before the Civil Court and only the possession on the plot is to be seen and since, petitioner is in possession of the disputed plot, there was no occasion for the Sub Divisional Magistrate, Chirawa to appoint a receiver. It is also contended that the impugned order has been passed contrary to the provisions of law and would occasion grave injustice to the petitioner who is in possession of the plot. 5. It is contended that the Sub Divisional Magistrate, Chirawa passed the order of appointment of receiver without giving any opportunity of hearing to the petitioner. It is also contended that on 07.06.2021, on directions of the Sub Divisional Magistrate, Chirawa, a site report was prepared, as per which also, on the disputed plot, an old boundary wall and an old tin shed were existing and petitioner's daughter was also found present on the plot. 6. It is also contended that on 07.06.2021, on directions of the Sub Divisional Magistrate, Chirawa, a site report was prepared, as per which also, on the disputed plot, an old boundary wall and an old tin shed were existing and petitioner's daughter was also found present on the plot. 6. It is further contended that after the impugned order of appointment of receiver was passed, the site was again visited by the receiver and the receiver on 14.06.2021 mentioned in his report that petitioner's daughter was present on the plot and an old tin shed, a boundary wall and a gate were also found on the plot. The receiver took possession of the plot on 14.06.2021 in pursuance of the directions of the Sub Divisional Magistrate, Chirawa. On 09.07.2021, on the application filed by the Respondent No.2 that possession has not been removed, Sub Divisional Magistrate, Chirawa directed the Tehsildar to remove the possession. It is contended that Sub Divisional Magistrate, Chirawa has no jurisdiction to direct the Tehsildar to remove the possession. 7. My attention has been drawn towards application filed by the Respondent No.2 before the Sub Divisional Magistrate, Chirawa, wherein, it is mentioned that petitioner is forcefully using the property and has requested the Sub Divisional Magistrate, Chirawa to remove the possession of the petitioner from the disputed property. 8. Counsel for the petitioner has placed reliance on "Ashok Kumar vs. State of Uttarakhand & Ors." (Criminal Appeal No.2038/2012) decided by Hon'ble Apex Court on 13.12.2012. 9. Counsel for the Respondent No.2 has vehemently opposed the Criminal Misc. Petition. It is contended that petitioner has already availed the remedy of Revision and the second Revision is barred and it is only in exceptional cases that the High Court can exercise the powers under Section 482 Cr.P.C. It is also contended that a suit for specific performance was filed by the petitioner, which was dismissed and it was observed by the Court that description of the plot was not mentioned in the agreement to sale and it is not established that water connection was taken on the same plot. 10. It is contended that Respondent No.2 has purchased the property by a registered sale deed and when he visited the plot for leveling up and raising the construction, objection was raised by the petitioner, on which a complaint was lodged by the Respondent No.2 to Superintendent of Police. 10. It is contended that Respondent No.2 has purchased the property by a registered sale deed and when he visited the plot for leveling up and raising the construction, objection was raised by the petitioner, on which a complaint was lodged by the Respondent No.2 to Superintendent of Police. Thereafter, a Civil Suit for injunction was also filed by the Respondent No.2 and the details of property were also mentioned. It is contended that the Civil Court has also granted an order of injunction in favour of Respondent No.2. Since, there is an apprehension of breach of peace, the order for appointing the receiver cannot be said to be bad in law. 11. I have considered the contentions and have perused the impugned order. 12. The impugned order dated 09.06.2021 was passed by the Sub Divisional Magistrate, Chirawa, on the basis of report received from the Tehsildar but, no opportunity of hearing at that time was given to the petitioner on account of emergent circumstance mentioned by the Tehsildar. From perusal of the record, it is revealed that way back in the year 2015, a dispute with regard to this property took place between Butiram and present petitioner. A Commissioner was appointed by the Civil Court and on the disputed plot, construction, water connection etc. were found and the report was prepared on 08.12.2015. Respondent No.2 has purchased the property by a registered sale deed from Butiram on 05.11.2020. In the sale deed executed in favour of the Respondent No.2, it is specifically mentioned that there is no construction on the plot. However, the plot in dispute has old boundary walls constructed thereupon, as is evident from the report of the Patwari dated 07.06.2021, wherein, it is specifically mentioned that there is an old boundary wall and petitioner's daughter was present at the time of inspection and an old tin shed was existing on the plot. Construction of toilet and a new house were also found in progress on 07.06.2021, when Patwari visited the site. 13. In the Civil Suit for injunction, Respondent No.2 claimed injunction against petitioner and the Civil Court has passed a stay order on 11.06.2021 vide which both the parties have been restrained from raising constructions and from selling the disputed plot. Construction of toilet and a new house were also found in progress on 07.06.2021, when Patwari visited the site. 13. In the Civil Suit for injunction, Respondent No.2 claimed injunction against petitioner and the Civil Court has passed a stay order on 11.06.2021 vide which both the parties have been restrained from raising constructions and from selling the disputed plot. From the Commissioner's report which is available on record, that is of the year 2015 and site report of 07.06.2021, it is established that there was an old boundary wall and an old construction was raised on the plot. Property which was purchased by Respondent No.2 was open piece of land as per the sale deed and there was no construction thereon. In the different sale deeds annexed with the petition, the said plot is shown as the plot of petitioner. 14. It is true that at this stage, this Court cannot go into the question of ownership, since the suit for specific performance filed by the petitioner was dismissed and the appeal is pending in the Court, and on the other hand, Respondent No.2 has registered sale deed in his favour. However, at the stage of Sections 145 & 146 Cr.P.C. only possession is to be seen. The documents which have been produced on record point towards possession being with the petitioner. 15. Hon'ble Apex Court in nAshok Kumar vs. State of Uttarakhand & Ors." (supra) has observed that provision of Sections 146 (1) Cr.P.C. to attach the property can be exercised only in case of emergency. Mere case of apprehension of breach of peace does not give power to attach the property. Hon'ble Apex Court also observed that when the reports indicates that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. 16. In the present case in hand, the possession was with the petitioner and the Civil Suit with regard to property was also filed by the Respondent No.2, wherein the order of injunction has been passed. Thus, the Court below and the Sub Divisional Magistrate, Chirawa has erred in attaching the property in question and appointing the receiver. 17. It is true that this Court cannot exercise the inherent powers except in rarest of rare cases. Thus, the Court below and the Sub Divisional Magistrate, Chirawa has erred in attaching the property in question and appointing the receiver. 17. It is true that this Court cannot exercise the inherent powers except in rarest of rare cases. In the present case, since the impugned order passed by the Sub Divisional Magistrate, Chirawa was passed without affording any opportunity of hearing to the petitioner and from the documents available on record, it is established that possession at the date of appointment of receiver was with the petitioner, there was no justification for the Court to appoint the receiver. Appointment of receiver in such a case where the dispute is pending before the Civil Court would occasion irreparable injury to the petitioner and would also occasion in failure of justice, hence, this Court deems it proper to exercise the inherent powers and the order of attachment of property deserves to be and is accordingly quashed. Since, this Court has come to the conclusion that Respondent No.2 who had purchased the property on 05.11.2020, had purchased only a plot, wherein there was no construction whereas, the disputed plot has an old boundary wall and an old construction present thereon, meaning thereby that petitioner was in possession of the plot. 18. Considering the above, I deem it proper to allow the Criminal Miscellaneous Petition. 19. Criminal Miscellaneous Petition is accordingly, allowed. 20. In the light of the reports of the Commissioner and Patwari, an old construction was available on the site and petitioner's daughter was also present on the disputed plot. Therefore, the receiver is directed to hand-over the possession to the petitioner. 21. Stay application stands disposed. 22. The observations made by this Court would not have any effect in the proceedings pending before the Court below.