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2023 DIGILAW 330 (BOM)

Sau. Maya Vidyanand Moon v. Kirtimala Bhanudas Bhagat

2023-01-31

G.A.SANAP

body2023
JUDGMENT G. A. Sanap, J. - In this writ petition, filed under Articles 226 and 227 of the Constitution of India, correctness of the order dated 07.09.2017 passed by learned Additional Session Judge-3, Chandrapur in Criminal Revision No. 30/2012 is questioned. By the impugned order, learned Additional Sessions Judge, Chandrapur was pleased to dismiss the revision application and confirm the order passed by the learned Sub-Divisional Magistrate, Chandrapur dated 12.03.2012, whereby the learned Sub Divisional Magistrate had directed the petitioners not to disturb and interfere in the possession of the respondent nos.1 to 7 over 9000 sq.ft. land. 2. The facts leading to this petition are as follows : The petitioners are the executive body members of a trust known as 'Dhamma Prasar Samiti', registered under the Maharashtra Public Trust Act, 1950, in the year 1994. The respondent nos.1 to 7 are claiming to be the members of a trust known as 'Nalanda Bal Sanskar Kendra'. The dispute between the petitioners and respondent nos.1 to 7 was in respect of possession over the land admeasuring 9000 sq.ft., part of survey No. 218, situated at mouza Durgapur, Chandrapur. As per the petitioners, the land bearing survey No. 218, Navin Nagar, Town Planning No. 1036, Sheet No.10, admeasuring 21081 sq.ft., was allotted to Dhamma Prasar Samiti in the year 1985. The land admeasuring 9000 sq.ft. claimed to have been in possession of respondent nos.1 to 7, according to the petitioners, is belonging to the trust managed by them. 3. The dispute between the petitioners being the executive members of Dhamma Prasar Samiti and the respondent nos.1 to 7 being the members of Nalanda Bal Sanskar Kendra, started on the point of actual possession of said 9000 sq.ft. land. The petitioners claimed right over the said property being allottee in 1985. The respondent nos.1 to 7 being the members of Nalanda Bal Sanskar Kendra claimed right and possession over said 9000 sq.ft. land. According to respondent nos.1 to 7, the original owner of the said land was Isak Nehmay. Said Isak, in the year 1991, gifted the disputed land to the respondent nos.1 to 7. The said land since then has been in possession of respondent nos.1 to 7. 4. The dispute between the parties started way back in the year 2002. land. According to respondent nos.1 to 7, the original owner of the said land was Isak Nehmay. Said Isak, in the year 1991, gifted the disputed land to the respondent nos.1 to 7. The said land since then has been in possession of respondent nos.1 to 7. 4. The dispute between the parties started way back in the year 2002. In-charge of Police Station, Ramnagar, Chandrapur on 12.04.2002 filed Istegasha bearing No. 02/2002 under Section 145 of the Code of Criminal Procedure before the learned Sub Divisional Magistrate. In the said Istegasha, in-charge of police station, Ram Nagar, contended that there was serious dispute between the parties in respect of the property in question. They are fighting with each other by claiming their possession over the said piece of the land. In-charge of the police station, therefore, requested the learned Sub Divisional Magistrate, Chandrapur to pass an appropriate order under Section 145 of Cr.P.C. Learned Magistrate passed the preliminary order directing both the parties to submit their written statements to justify their possession over the disputed land. After considering the written statements of the parties and the documents, learned Magistrate initially on 19.08.2002 found the petitioners in possession of the land and directed the respondent nos.1 to 7 not to disturb their possession. Respondent nos.1 to 7 challenged this order in the District and Sessions Court, Chandrapur. Learned Ad-hoc Additional Sessions Judge, Chandrapur by his order dated 19.07.2003 was pleased to allow the revision application. The order passed by the learned Sub Divisional Magistrate was set aside and the matter was remanded to the learned Magistrate for fresh enquiry in the backdrop of the observations made in the order dated 19.07.2003. 5. Learned Sub Divisional Magistrate conducted the inquiry afresh and passed the order on 12.03.2012. During fresh inquiry, the learned Magistrate found the respondent nos.1 to 7, on the basis of the material on record, in possession of the said property and directed the petitioners not to cause obstruction to the possession of respondent nos.1 to 7. The petitioners challenged the said order passed by the learned Magistrate in the Sessions Court, Chandrapur. Learned Additional Sessions Judge, vide order dated 07.09.2017 dismissed the revision application filed by the petitioners and confirmed the order passed by the learned Magistrate. Against this order, the petitioners are before this Court. 6. I have heard Ms. The petitioners challenged the said order passed by the learned Magistrate in the Sessions Court, Chandrapur. Learned Additional Sessions Judge, vide order dated 07.09.2017 dismissed the revision application filed by the petitioners and confirmed the order passed by the learned Magistrate. Against this order, the petitioners are before this Court. 6. I have heard Ms. B. A. Dhapodkar, learned advocate holding for Mr. Anand S. Joshi, learned advocate for the petitioners, Ms. Poonam D. Pisurde, learned advocate holding for Mr. S. V. Sirpurkar, learned advocate for respondent nos.1 to 7 and Mr. Amit R. Chutke, learned Additional Public Prosecutor for respondent no.8/ State. Perused the record and proceedings. 7. Learned advocate for the petitioners submitted that learned Sub Divisional Magistrate, Chandrapur as well as learned Additional Sessions Judge, Chandrapur widened the scope of enquiry contemplated under Section 145 of the Cr.P.C. Learned advocate took me through the record and submitted that the land admeasuring 21081 sq.ft. was given to the trust managed by the petitioners in the year 1985 and the same has been in their possession. Learned advocate submitted that there is ample evidence to establish the possession of the petitioners over the disputed piece of land. Learned advocate submitted that the material placed on record to establish the possession has not been properly appreciated. Learned advocate, therefore, submitted that both the orders are required to be quashed and set aside. 8. Learned advocate for the respondent nos.1 to 7 submitted that the respondents are not claiming entire land of 21081 sq.ft. Learned advocate submitted that the land admeasuring 9000 sq.ft. was gifted to Nalanda Bal Sanskar Kendra by the owner Isak Nehamay in the year 1991. Learned advocate submitted that there is ample evidence on record to establish that the possession of this piece of land is with respondent nos.1 to 7 since 1991. Learned advocate pointed out the boundaries of the piece of land admeasuring 9000 sq.ft from the reply filed before the learned Magistrate. Learned advocate took me through the record and pointed out that during the course of enquiry, spot panchanama was drawn by the police on 08.09.2002 and it has been specifically recorded in the said panchanama that possession of the piece of land admeasuring 9000 sq.ft. is with the respondent nos.1 to 7. Learned advocate took me through the record and pointed out that during the course of enquiry, spot panchanama was drawn by the police on 08.09.2002 and it has been specifically recorded in the said panchanama that possession of the piece of land admeasuring 9000 sq.ft. is with the respondent nos.1 to 7. Learned advocate pointed out that respondent nos.1 to 7 are carrying out full fledge activities of Nalanda Bal Sanskar Kendra from the structure constructed on this land. Learned advocate submitted that the order passed by the learned Magistrate and confirmed by the learned Additional Sessions Judge in revision is well reasoned order supported by the material. 9. Learned Additional Public Prosecutor for the State supported the order passed by the learned Sub Divisional Magistrate and the order passed by the learned Additional Sessions Judge in revision confirming the order of learned Magistrate. 10. It is seen on perusal of the record that the dispute between the parties is with regard to the possession over the piece of land admeasuring 9000 sq.ft., a part of survey No. 218. According to the petitioners, land admeasuring 21081 sq.ft. was given in possession of the trust managed by them in the year 1985. According to them, therefore, there was no question of handing over possession of disputed piece of land admeasuring 9000 sq.ft. from their land by Isak Nehamay to the trust administered by respondent nos.1 to 7. 11. At the outset, it is necessary to mention that the issues with regard to the title and right to possession of the property in dispute are not germane for the enquiry in the proceedings initiated under Section 145 of the Cr.P.C. The Court while dealing with the proceedings under Section 145 of Cr.P.C. is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date. The Court is not required to decide either title to the property or the right of possession of the same. The question with regard to the possession on the given date or two months prior to initiation of the preliminary enquiry, is the question of fact and therefore, has to be decided on the basis of the contentions of the parties and the supporting evidence. The question with regard to the possession on the given date or two months prior to initiation of the preliminary enquiry, is the question of fact and therefore, has to be decided on the basis of the contentions of the parties and the supporting evidence. It is further pertinent to note that the object of Section 145 of Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or either of the party's possession. The object of this proceeding is not to evict any person from possession. Therefore, the question with regard to the title or right to possession are not germane to the enquiry. Section 145 of Cr.P.C. is a part of Chapter X of the Cr.P.C. The title of the Chapter is 'Maintenance of Public Order and Tranquility'. It is to be noted that therefore, before passing an order under Section 145 of Cr.P.C., the Executive Magistrate must be satisfied from a report of a police officer or upon other information that there exist a dispute and said dispute is concerning any land or water or boundaries thereof and is likely to cause breach of peace. 12. In this case, the dispute is with regard to the possession over the piece of land admeasuring 9000 sq.ft. by the rival parties. They reported the matter to police by asserting their right of possession over this piece of land. In-charge of the police station, after assessment of the gravity of the situation and the nature of the dispute, made an application to learned Sub Divisional Magistrate, Chandrapur requesting him to pass an appropriate order. In-charge of the police station specifically stated in his report that if an order is not passed directing one of the parties to retain the possession and other party not to disturb the possession, there would be serious dispute between them and which ultimately would cause breach of peace. Learned Sub Divisional Magistrate conducted preliminary enquiry. Parties filed their written statements before the learned Magistrate. It is seen on perusal of the order passed by the learned Magistrate and confirmation of the said order in revision by the learned Additional Sessions Judge that the documents filed with the report by the in-charge of the police station were taken into consideration. Parties filed their written statements before the learned Magistrate. It is seen on perusal of the order passed by the learned Magistrate and confirmation of the said order in revision by the learned Additional Sessions Judge that the documents filed with the report by the in-charge of the police station were taken into consideration. On the basis of the documents and the rival contentions of the parties set out in their written statements, learned Magistrate found that respondent nos.1 to 7 were in possession of the property in dispute on the given date and they are entitled to remain in possession without disturbance of the same by the petitioners. Learned Magistrate accordingly directed the petitioners not to disturb possession of respondent nos.1 to 7. Correctness of the order was examined by the learned Additional Sessions Judge while deciding the revision. Learned Additional Sessions Judge found the material considered by the learned Magistrate sufficient to maintain the order passed by the learned Magistrate. 13. On minute perusal of the material and particularly the spot panchanama, it is seen that no error or mistake was committed initially by the learned Sub Divisional Magistrate and in revision by the learned Additional Sessions Judge. The documents namely spot panchanama, report of measurement of the land by Land Inspection Office, registration certificate of both the trusts and the number of revenue documents, were taken into consideration. The resolution of Gram Panchayat, Durgapur dated 13.05.2002 revealed that the Gram Panchayat had decided to record the piece of land admeasuring 9000 sq.ft. in the name of the trust managed by respondent nos.1 to 7 for the purpose of assessment. It is further pertinent to note that in a civil suit filed by the trust managed by the petitioners, the relief was not granted in favour of the trust. The Civil Court found that one Asha Lokhande was occupying 1600 sq.ft land and one Sunanda Khobragade was occupying 1600 sq.ft. Land. The land in possession of Asha Lokhande and Sunanda Khobragade, as per the petitioners, was part of the land admeasuring 21081 sq.ft. allotted to their trust. It is, therefore, seen that the parties have asserted their rival claims in respect of this piece of land. The said dispute cannot be gone into in this proceeding. Land. The land in possession of Asha Lokhande and Sunanda Khobragade, as per the petitioners, was part of the land admeasuring 21081 sq.ft. allotted to their trust. It is, therefore, seen that the parties have asserted their rival claims in respect of this piece of land. The said dispute cannot be gone into in this proceeding. The limited issue with regard to the possession of the concerned party on the given date and that too for the purpose of avoiding breach of peace, has been resolved in this proceeding. 14. After considering the pros and cons of the matter, I am satisfied that no mistake or error was committed by the learned Additional Sessions Judge while rejecting the revision. As such, I conclude that there is no substance in the petition. The petition deserves to be dismissed and it is accordingly dismissed. The order dated 07.09.2017 passed by learned Additional Session Judge-3, Chandrapur in Criminal Revision No. 30/2012, confirming the order passed by the learned Sub-Divisional Magistrate, Chandrapur dated 12.03.2012, is maintained.