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Toijam Gokul Singh and anr. Vs. Md. Ibrahim Mia and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantToijam Gokul Singh and anr.
RespondentMd. Ibrahim Mia and ors.
Excerpt:
- .....s.d.m. declared under section 145, cr.p.c., that the respondents have been in possession of the disputed land since 28.11.1960 and that they should continue to possess the same until they are ousted in due course of law.2. the s.d.m., bishenpur, drew up proceedings on 28.11.1960 under section 145, cr.p.c., on the strength of a police report dated 23.11.1960 and passed a preliminary order under section 145(1), cr.p.c., on 28.11.1960. he ordered attachment of the disputed land on the same date of 28.11.1960. both the parties filed written statements, affidavits and documents in support of their respective claims to the disputed land. but, as the s.d.m. was unable to determine which of the parties was in actual physical possession of the disputed land on 28.11.1960, the date of the.....
Judgment:

C. Jagannadhacharyulu, C.J.

1. This is a reference made by the Sessions Judge, Manipur, under Section 438, Cr.P.C., to set aside the order of the S.D.M., Bishenpur, dated 17.9.1965, passed in his Criminal Misc. Case No. 9 of 1965, under which the S.D.M. declared under Section 145, Cr.P.C., that the respondents have been in possession of the disputed land since 28.11.1960 and that they should continue to possess the same until they are ousted in due course of law.

2. The S.D.M., Bishenpur, drew up proceedings on 28.11.1960 under Section 145, Cr.P.C., on the strength of a Police report dated 23.11.1960 and passed a preliminary order under Section 145(1), Cr.P.C., on 28.11.1960. He ordered attachment of the disputed land on the same date of 28.11.1960. Both the parties filed written statements, affidavits and documents in support of their respective claims to the disputed land. But, as the S.D.M. was unable to determine which of the parties was in actual physical possession of the disputed land on 28.11.1960, the date of the preliminary order, or within two months prior to that date, he made a reference to the Civil Court under Section 146(1), Cr.P.C.

3. The Munsiff, Manipur, held an enquiry and recorded evidence (oral and documentary) and gave a finding on 6.4.1962 that the petitioners were in possession of the disputed land on the date of the preliminary order and sent back the records to the S.D.M. under Section 146(1-A), Cr.P.C.

4. Under Section 146(1-A) it was the duty of the S.D.M. to dispose of the proceeding under Section 145, Cr.P.C., in conformity with the decision of the Civil Court. Though the S.D.M. received the records on 30.4.1962, he did not pass any order. The petitioners filed an application before the S.D.M. on 25.8.1965, to take up the matter and to pass an order in conformity with the decision of the Civil Court. On the same date the petitioners also filed a petition No. 258/25.8.1965 before the S.D.M. for the prosecution of the respondents on the ground that they trespassed into the disputed land subsequent to its attachment.

5. The S.D.M. took up the case on 25.8.1965 and passed the impugned order on 17.9.1965 holding that the respondents should continue to be in possession of the disputed land until they are evicted in due course of law. He passed the said order on two grounds: Firstly, he states that the petitioners themselves admitted that the respondents have been in possession of the disputed land since 28.11.1960 and that therefore, they should continue to be in possession of it. Secondly, he states that the pattas for the disputed land, namely, patta No. 91/1029 and patta No. 91/1030, stood in the name of late Asem Gulap Singh, while the Dag Chitha Nos. 91/1029 and 91/1030 stand in the names of the respondents 1 and 2, that they also produced a katcha patta standing in their names and that, therefore, they should be allowed to be in possession of the disputed land.

6. The petitioners filed Criminal Revision Case No. 70 of 1965 in the Sessions-Court, Manipur, under Section 438, Cr.P.C. to set aside the order of the S.D.M. The Sessions Judge felt that the said order is illegal and that it should be set aside. So, he made the present reference to this Court.

7. Under Section 146(1-B), Cr.P.C., the Magistrate shall, on receipt of the finding and the records from the Civil Court, proceed to dispose of the proceeding under Section 145, Cr.P.C., in conformity with the decision of the Civil Court. This is a mandatory provision and the S.D.M. had no option except to pass an order in conformity with the decision of the Munsiff, Manipur, that the petitioners were in possession of the disputed land on 28.11.1960, the date of the preliminary order and should have confirmed their possession. But, the S.D.M. acted contrary to the provisions of Section 146(1-B), Cr.P.C. and passed an order opposed to the finding of the Civil Court. The first ground given by him that as the petitioners themselves admitted that the respondents have been in possession of the disputed land since 28.11.1960, the respondents must be allowed to continue to be in possession of it, is opposed to the law. The land was attached on 28.11.1960. So, its occupation by the respondents after its attachment is illegal. As such, the first ground, on which the S.D.M. passed the order, fails. The second ground mentioned by the S.D.M. in his impugned order is that the pattas for the said land, namely, Nos. 91/1029 and 91/1030, stood in the name of late Asem Gulap Singh, while the Dag Chithas for the same stand in the names of respondents 1 and 2 and that, they produced a katcha patta, showing that the land stands in their names. The order of the Munsiff shows that he considered the fact that the pattas stood in the name of Asem Gulap Singh. But he held that the petitioners were his lessees and that they were in possession of the disputed land on 28.11.1960, the date of the preliminary order. The order of the Munsiff shows that the respondents did not produce any patta or Jamabandi account before him, but, that they produced a certified copy of the order of the Chief Commissioner dated 15.5.1961 in C.C. (Revenue) Appeal Case No. 6 of 1961, under which the Chief Commissioner stated that the lands would not be settled to ex-sepoys of the World War I and that the persona in occupation of the disputed land would be deemed to be encroachers. The Munsiff held that this order would not help the respondents and did not consider that it had any bearing on this case.

The learned Counsel for the respondents contended that the decision of the S.D.M. under Section 146(1-B), Cr.P.C., is subject to any subsequent decision of a Court of competent jurisdiction under Sub-section (1-C) of Section 146, Cr.P.C., that a Revenue Court is also a Court of a competent jurisdiction, that the finding of the Munsifi on which the S.D.M. should have based his order was thus subject to the order of the Chief Commissioner dated 15.5.1961 in C.C. (Revenue) Appeal Case No. 6 of 1961 and that, therefore, the S.D.M. was correct in holding that the respondents should be allowed to continue to be in possession of the disputed land in pursuance of the said order of the Chief Commissioner. He relied on Mrs. V.E. Argles v. Chhail Behari AIR 1949 All 230 and Tikuda v. State in support of his contention that a Revenue Court may come into the picture under Section 146(1-E), Cr.P.C. and that, therefore, the decision or the Civil Court under Section 146(1-A) and that of the Magistrate passed on it under Section 146(1-B) would be subject to the decision of even the Revenue Court. His contention that Section 146(1-E), Cr.P.C., applies even to the decision of a Revenue; Court is correct. But, this aspect of the case was already considered by the Munsiff, who came to the finding that the order of the Chief Commissioner dated 15.5.1961 in C.C. (Rev.) Appeal Case No. 6 of 1961 does not avail the respondents. It was not open to the S.D.M. to allow any party to let in fresh evidence after the Civil Court gave its finding. He was not entitled to look into the Dag Chithas or the katcha patta, produced by :he respondents subsequently before him. It was his legal obligation to pass an order in conformity with the decision of the Civil Court. Moreover, it appears that the land was surveyed after 28.11.1960, the date of the preliminary order. So, until the final publication is made, the Dag Chithas and the katcha patta cannot have much value in the present proceeding. At any rate, the S.D.M. should nave simply passed an order in pursuance of the finding of the Civil Court under Section 146(1-B), Cr.P.C. It is always open to the parties to fight out their cases regularly in any Court according to law. Only then, the order of the S.D.M. would be subject to the finding, which might be given in such a regular proceeding.

8. In the result, the order of the S.D.M. is set aside and the reference is accepted. The petitioners should be held to be in possession of the disputed land on 28.11.1960, the date of the preliminary order and the respondents are prohibited from interfering with their possession until evicted in due course of law. The S.D.M. should also restore the petitioners to possession of the disputed land.


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