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2024 DIGILAW 800 (PNJ)

Rajesh Kumar v. State of Punjab

2024-05-07

HARKESH MANUJA

body2024
JUDGMENT Harkesh Manuja, J. By way of present petition filed under Section 482 Cr.P.C., prayer has been made for quashing of FIR No. 290 dated 07.11.2019 registered Section 167, 420, 468, 471 467 and 120B of IPC, 1860 at PS Salem Tabri, District Ludhiana, Punjab as well as report under Section 173 Cr.P.C. dated 21.10.2023 submitted qua the petitioners. 2. The FIR in the present case was registered on the basis of complaint received from respondent No.2 alleging that the area of Khasra No. 425,426,574,575 etc. in the official revenue record was declared as streets, drains and roads vide Rapat No. 996 dated 17.05.2010 under the order of District Collector Ludhiana and Patwari-Baljit Singh through subsequent report No.247 dated 26.11.2014, by using his power in an illegal manner, issued a new "fard" to the land mafia by changing records pertaining to this area under streets, drains and roads. Thereafter, without there being any other document and without informing the complainant, he immediately approved the registration of 632 square yards of land and transferred it in the name of his partner vide vasika No. 11419 dated 05.12.2014. In this way, land mafia took over the possession of vacant land of the complainant purchased in 1994 vide registered sale deeds on the basis of the wrong registry. 2.1 Brief background necessary to understand the present case is that civil suits were filed on behalf of petitioners as well as on behalf of respondent No 2 for permanent injunction which were decided by the Civil Judge (Junior Division) Ludhiana vide order dated 30.01.2016 which were decreed in favour of the petitioners. In appeals, learned Additional District Judge, Ludhiana remanded the matter back by finding it a suit of "Hadd Shikni" and not a suit related to title. It is appropriate to note here that in this suit Patwari - Baljit Singh appeared as a witness and justified the claim of the petitioners on the basis of rapat No. 247 dated 26.11.2014. 2.2 Alleging that new report No. 247 dated 26.11.2014 was prepared by the Patwari-Baljit Singh for extraneous reasons, above-mentioned FIR was registered against him. During investigation, he made confessional statement that he registered the transfer and approved the registration of 632 square yards vide vasika No. 11419 dated 05.12.2014 on receiving Rs. 2,00,000/-, in the chargesheet, some other persons including petitioners were also arraigned as accused in this FIR. During investigation, he made confessional statement that he registered the transfer and approved the registration of 632 square yards vide vasika No. 11419 dated 05.12.2014 on receiving Rs. 2,00,000/-, in the chargesheet, some other persons including petitioners were also arraigned as accused in this FIR. By way of present petition, prayer has been made for quashing of the FIR as well as the charge sheet. 3. Learned Counsel for the petitioners submitted that the present matter relates to civil dispute between the parties regarding possession of the disputed property which was being given criminal colour just to pressurize the petitioners to enter into a compromise. He submitted that his contention in this regard was substantiated from the fact that civil cases with respect to this property were also filed by both the parties claiming the relief of permanent injunction and the suits were eventually decreed in favour of the petitioners vide judgment and decree dated 30.01.2016 by Civil Court (Jr. Division) Ludhiana. He further submitted that though vide judgment and decree dated 28.01.2019 passed by the first Appellate Court, the matter was remanded back, however, demarcation report dated 11.12.2019 was in favour of the petitioners. 3.1 Ld. Counsel submitted that from the demarcation report, claim of the petitioners was duly substantiated, on the other hand, respondent No.2/ complainant did not make any claim against the seller, who sold him the disputed land and on the principle of "buyer beware", respondent No. 2/ complainant was not entitled to make any claim against the petitioners. He also submitted that even in the chargesheet, neither there was any accusation regarding cheating on the part of the petitioners, nor was there any assertion regarding the petitioners being the beneficiaries of the act of Patwari - Baljit Singh. Lastly, he submitted that there was 05 years unexplained delay in lodging the FIR, which also shows that the same was registered just as a pressure tactic against the petitioners. 4. On the other hand, respondent No 2 appeared in person and submitted that since the findings given by the learned trial Court were dehors the pleadings, first appellate Court rightly remanded the matter back and in that circumstance, the findings by the trial Court could not come to the aid of the petitioners. 4. On the other hand, respondent No 2 appeared in person and submitted that since the findings given by the learned trial Court were dehors the pleadings, first appellate Court rightly remanded the matter back and in that circumstance, the findings by the trial Court could not come to the aid of the petitioners. He further submitted that since the rapat number 247 dated 26.11.2014 was prepared by the Patwari-Baljit Singh at the instance and in collusion with petitioners, they were rightly arraigned as accused persons by the investigating agency. Regarding demarcation report, he submitted that its finding, in any case was not final and thus in no way justifies the offences committed by the petitioners. 4.1 Learned State Counsel adopted the arguments on the same line to support the FIR and chargesheet. 5. I have heard learned counsel for the parties and gone through the paper book. I do not find much substance in the submissions made on behalf of the petitioners. 6. Once it was held by the learned First Appellate Court that findings given by the Ld. Trial Court were given on a point which was not in dispute between the parties, the same cannot come to the rescue of the petitioners. In this context, relevant observations of the first appellate Court are reproduced hereunder:- "15. Above submissions and contentions of both the sides have been considered and examined in the light of facts and circumstances emerging on record in the evidence adduced viz-a-viz the findings returned by the learned lower court in its impugned judgment. Upon doing so, this court finds that the learned trial court has failed to consider the controversy involved between the parties in its correct perspective. It has also not approached the entire controversy in a right and appropriate manner in order to decide the same and to return its findings. The suit, earlier in time, filed by plaintiffs/respondents Rajesh Kumar and others, was for permanent injunction asking for the relief of restraining the defendants/appellants Manjit Singh and Sarabjit Singh from interfering in their peaceful possession of the suit property, that has been comprised in particular and specific khasra numbers detailed in the plaint. The suit, earlier in time, filed by plaintiffs/respondents Rajesh Kumar and others, was for permanent injunction asking for the relief of restraining the defendants/appellants Manjit Singh and Sarabjit Singh from interfering in their peaceful possession of the suit property, that has been comprised in particular and specific khasra numbers detailed in the plaint. Thus, their suit for permanent injunction was based on their claim of ownership and possession of the suit property that was comprised in specific khasra numbers and the suit property being depicted with specific boundaries in the site plan attached. The other suit, subsequent in time, that has been referred to as civil suit no.2 in the impugned judgment, was filed by the defendants in the prior suit, by way of counter claim while claiming their ownership and possession of the suit property comprised in totally different khasra numbers alongwith specific boundaries. It means both the parties claimed the suit property in their possession claiming the same falling in different khasra numbers. Of course, there was no dispute with regard to the ownership and title of each other over the claimed khasra numbers. It means they were not disputing each other's title and their ownership of khasra numbers alleged. As such, the controversy involved in both the suits was a case of demarcation, a 'Hadd shikni case. But, the learned trial court failing to realize that, paid attention to decide the question of their ownership and title while no specific findings could be returned with regard to the question involved that was of right demarcation and identification of the property. Rather, the impugned judgment and decree passed by the learned trial court is of no meaning as no findings could be given by the trial court if the suit property fell in those khasra numbers that have been differently claimed by the parties or not. *** 16. The approach of the learned trial court in dealing with the matter went wrong because the claimed suit property was falling in specific khasra numbers alleged by the parties differently alongwith the site plans showing specific boundaries that are different from each other. There is rather a specific plea taken by respondents Rajesh Kumar and others in their written statement filed, that the alleged construction which the appellants/plaintiffs claimed over the suit property, did not relate to the suit property falling in khasra numbers owned by them. There is rather a specific plea taken by respondents Rajesh Kumar and others in their written statement filed, that the alleged construction which the appellants/plaintiffs claimed over the suit property, did not relate to the suit property falling in khasra numbers owned by them. Moreover, Ex.D4 report of the Halqa Patwari that was placed reliance upon heavily by the trial court to decide the matter, was not actually any demarcation report nor the Halqa Patwari was competent to carry out demarcation in 'hadd shikni' matters as per the rules and instructions of the revenue department. *** 19. Thus, finding the entire judgment and decree having no meaning since not executable also till the property was demarcated and identified, it could not be sustained. Therefore, upon setting aside the impugned judgment and decree, it is felt that both the consolidated suits should be decided afresh by allowing/giving the parties opportunities to lead further additional evidence, if any and by following the procedure laid down above in the High Court Rules and Orders Volume-I, i.e. by way of appointment of Local Commissioner, if desired...." 7. In view of the above observations made by the first appellate Court, when the findings of Civil Court were not related to the matter contested by the parties and not pertinent to the dispute in concern, those could not be made applicable in this case. A Constitutional Bench of Hon'ble Supreme Court in "Iqbal Singh Marwah v. Meenakshi Marwah", reported as (2005) 4 SCC 370 , held that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. Relevant para from the same is reproduced hereunder:- "24. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. ***" 8. Even the possession of respondent No.2 on the land described by him in his plaint has not been denied by the petitioners as well. In the Regular Second Appeal filed before this Court against the judgment and decree dated 28.01.2019, as recorded in notice of motion order dated 03.05.2019, petitioners filed an affidavit not to interfere in possession of respondents over the suit property as fully described in the plaint of respondents. Relevant part of the same is reproduced hereunder:- "Learned counsel for the applicants-appellants has filed affidavit of applicant-appellant no. 4-Ashok and submits that appellants undertake not to interfere in possession of respondents over the suit property as fully described in the plaint of respondents. He further submits that properties of parties are separate and are not even adjoining, as such, there is no need for any demarcation. " 9. The primary grievance of respondent No.2/ complainant while making the complaint was regarding the rapat number 247 dated 26.11.2014, which as per his allegations was prepared in a fraudulent manner by the concerned patwari - Baljit Singh in collusion with the land-grabbers so as to usurp his land. During investigation, the investigating agency recorded the statement of main accused patwari - Baljit Singh, who confessed having prepared that rapat after taking Rs. 2 lakh from the other patwari. Since the petitioners were the direct beneficiaries of this act of the main accused, it cannot be stated that their inclusion as additional accused in the present case was without any basis. 10. This is not a case where the offences alleged in the FIR or charge-sheet are not made out from the contents of the FIR. Rather, the matter pertains to disputed questions of facts not only in relation to possession and identification of the disputed property, but also in relation to the fact whether the alleged registration of this property in favour of petitioners was caused in a fraudulent manner. Rather, the matter pertains to disputed questions of facts not only in relation to possession and identification of the disputed property, but also in relation to the fact whether the alleged registration of this property in favour of petitioners was caused in a fraudulent manner. Additionally, there have been multiple inquiries providing conflicting findings which further complicate the matter. Findings recorded in demarcation report as well as the delay by respondent No.2 in registering the FIR, has to be looked into by the trial court but at this pre-mature stage they do not require undue consideration. 11. In view of the discussion made above, finding no merit in the present petition, same is hereby dismissed. 12. Pending miscellaneous application(s), if any, shall also stand disposed of.