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Ambu Kisan Vaditke Vs. Venubai Limba and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 282 of 1960
Judge
Reported inAIR1961Bom261; (1960)62BOMLR869; 1961CriLJ639; ILR1961Bom195
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 439(2) and 440
AppellantAmbu Kisan Vaditke
RespondentVenubai Limba and anr.
Appellant AdvocateR.W. Adik, Adv.;M.A. Rane, Asst. Government Pleader
Respondent AdvocateG.N. Vaidya, Adv. for ;P.T. Borale, Adv. and ;Girish M. Vakil, Adv.
Excerpt:
.....or by a pleader in his own defence. - - in course of the chapter proceedings before the taluka magistrate, written statements were filed by both the parties as well as affidavits of witnesses, and documentary evidence was also produced in support of the respective claims. he contended that that was all that the taluka magistrate was entitled to do under section 145 of the criminal procedure code and that, having failed to come to any such finding, the case should be remanded to him for the purpose of recording that finding. it was urged, on the other hand, by the learned advocate for the opponent that the taluka magistrate did his best to come to the conclusion as to who was in actual possession of the land, but unfortunately, he did not derive any assistance whatever from the..........by the learned magistrate, ahmednagar, in a revision application against the order passed by the taluka magistrate, shrirampur in the proceedings under section 145 of the criminal procedure code. it appears that there were disputes between party no. 1 and party no. 2 as regards the ownership of certain lands which admittedly belonged to one limba, who was the husband of the original party no. 1. this limba died some time in 1953 leaving the original party no. 1 as his heir, but it was contended by the original party no. 2 that the deceased had passed a sale deed in respect of those lands in his favour only a day before his death and that he had also delivered possession of those lands to him. on the other hand, the original party no. 1, the widow of limba, contended that she was.....
Judgment:
ORDER

1. This is an application fifed by the original party No. 2 against the order passed by the learned Magistrate, Ahmednagar, in a revision application against the order passed by the Taluka Magistrate, Shrirampur in the proceedings under Section 145 of the Criminal Procedure Code. It appears that there were disputes between party No. 1 and party No. 2 as regards the ownership of certain lands which admittedly belonged to one Limba, who was the husband of the original party No. 1. This Limba died some time in 1953 leaving the original party No. 1 as his heir, but it was contended by the original party No. 2 that the deceased had passed a sale deed in respect of those lands in his favour only a day before his death and that he had also delivered possession of those lands to him. On the other hand, the original party No. 1, the widow of Limba, contended that she was entered in the record of rights as the successor to the deceased Limba in respect of those lands and that she was in possession of those lands ever since her husband's death down to the date of the order which was made by the Taluka Magistrate in the Chapter proceedings. It appears, however, that both these parties continued to quarrel over the possession of those lands until it was found by P.S.I., Shrirampur, that the dispute between the parties was likely to affect the public peace. Accordingly, the P.S.I., made a report on 9-3-56 to the Taluka Magistrate, Shrirampur, with a request that action be taken under Section 145 of the Criminal Procedure Code. The Taluka Magistrate acting upon the report attached those lands and put them in possession of the Receiver. In course of the Chapter proceedings before the Taluka Magistrate, written statements were filed by both the parties as well as affidavits of witnesses, and documentary evidence was also produced in support of the respective claims. On a careful consideration of that material the Taluka Magistrate came to the conclusion that the claim made by the original party No. 2 the applicant in this application that ho was in possession of those lands even before the deceased Limba passed the sale deed in his favour as a tenant, was not at all proved by any evidence whatever. He also found that there was no substance in the contention of the applicant that possession of those lands was delivered to him by the deceased himself on the date of the sale deed on the ground that the deceased, who died on the very next day was not in a fit state of health to deliver the possession of any of those lands to him as alleged. Besides, the Taluka Magistrate found that the consideration which was alleged to have been paid by the applicant to Limba did not seem to have been paid at all and that it was a got up document and for these reasons, the Taluka Magistrate held that he could not believe that the applicant could have got into possession of any of those lands at all. He held, however, that if the applicant as 3 matter of fact- was in possession of those lands as claimed byhim, it must have been so as a result of the applicant having applied unlawful means for the purpose. Ultimately he came to the conclusion that as against the claim of the applicant the claim to possession made by the legal heir of the deceased namely, the opponent, should be protected and order the Receiver of the lands to hand over possession of the lands to the opponent. As against this order the applicant filed a revision application to the District Magistrate and it seems that the learned District Magistrate without hearing the parties passed an order confirming the order passed by the Taluka Magistrate. It is against this order of the learned District Magistrate that the applicant has filed the present revision application.

2. It was contended by Mr. Adik the learned advocate for the applicant, that the learned District Magistrate ought to have heard the parties before making his order and that, inasmuch as the parties were not heard by him, the decision was opposed to law as also the rules of natural justice. The learned advocate for the opponent, on the other hand contended that under Section 440 of the Cri. P. C. no obligation was cast upon the Court while exercising revisional jurisdiction to hear the parties to such application. This section expressly provides that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision. The section, however, has got a proviso which says that the Court may, if it thinks fit when exercising those powers, hear any party either personally or by pleader and nothing in the section shall be deemed to affect Section 439(2). Sub-section (2) of Section 439 provides that no order under that section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by a pleader in his own defence. The effect of these two provisions, in my opinion is that although a party to an application in revision cannot claim any right to be heard either personally or by a pleader in support of or opposition to the application, discretion is given to the Court exercising revisional powers to call upon a party to such application to attend the hearing of the application and hear him personally or by a pleader. Despite the discretion which is vested in the Court under this section, however, by virtue of Sub-section (2) of Section 439 the Court in exercise of its revisional powers cannot make any order on the application which would work to the prejudice of the accused unless be has had an opportunity of being heard either personally or by a pleader in his own defence. In the result, whenever an application in revision is heard by a Court possessed of powers of revision and an order winch is to the prejudice of the accused is likely to be made, it is obligatory upon the Court to give an opportunity to the accused of being heard either personally or by a pleader in his own defence. Relying upon these provisions, Mr. Adik the learned Advocate for the applicant contended that here was an application made before the learned District Magistrate for setting aside the order passed by the Taluka Magistrate and that application was dismissed without hearing him. He contended that the order that was passed by the learned District Magistrate did work to the prejudice of his client and that, therefore the matter should be remanded to the learned District Magistrate forre-hearing according to law after giving proper opportunity to his client of being heard in support of his application. It must be remembered, however, that in Chapter proceedings there is no complainant and no accused. They are summary proceedings taken by a Magistrate empowered in that behalf on the report of a police officer whose duty is to maintain law and order when it is apprehended that a breach of the peace is likely to occur in respect of a certain property. It is upon this report that the Magistrate exercises his powers under Section 145 of the Criminal Procedure Code and generally orders the attachment of the property which is the subject matter of the dispute. Thereafter he calls upon the parties to the dispute to file their written statements and proceeds further to determine the question as to the possession of the property at the date of the order with a view to finally dispose of the chapter proceedings. It will thus be seen that in these proceedings there is no complainant and there is no accused. If there is at all a complainant, he is the Sub-Inspector of Police and if at all there are any accused, both the parties to the proceedings are the accused. The analogy of a complainant and an accused in ordinary criminal cases, however, cannot aptly be applied to a case such as this, as neither party to the dispute is alleged to have committed any offence and chapter proceedings do not amount to a prosecution for any such offence. Accordingly, as there is no accused involved in the Chapter proceedings, the obligation imposed upon the Court under Sub-section (2) of Section 439 to give an opportunity to the accused to be heard in support of the application made by him before an order to his prejudice is made, cannot apply, in this case and the order of the learned District Magistrate cannot be impugned on that account.

3. It was next contended by Mr. Adik, the learned advocate for the applicant, that the Taluka Magistrate had not given a definite finding as to which of the parties was in actual possession of the lands in question at the date of the order. He contended that that was all that the Taluka Magistrate was entitled to do under Section 145 of the Criminal Procedure Code and that, having failed to come to any such finding, the case should be remanded to him for the purpose of recording that finding. It was urged, on the other hand, by the learned advocate for the opponent that the Taluka Magistrate did his best to come to the conclusion as to who was in actual possession of the land, but unfortunately, he did not derive any assistance whatever from the material on the record. The panchnama which was made at the time when the Receiver went to take possession of the land, also did not show as to from whom the possession was actually taken. There were crops standing on the lands, but the panchas could not find as to which of the parties was in actual possession of the lands on that date. There was no reliable evidence also in the view of the Taluka Magistrate to enable him to come to the findings as to who in fact was in possession of the land on that date. The best, therefore, that he could do in the circumstances was to trace the legal title of the parties concerned and come to the conclusion as to who could possibly be said to be in possession of the lands when the order under Section 145 was made by him. As stated above, he came to the conclusionthat the claim to possession made by the applicant was inconsistent and untenable. He stated that it was inconsistent in the sense that in one breath the applicant claimed to be in possession of the lands, even before the sale deed was passed in his favour by Limba, as a tenant, and in another breath he stated that the possession of the lands was given to him by the deceased himself on the very day the sale deed was passed in his favour. The learned Taluka Magistrate also found that no steps were taken by the applicant to get the sale deed in his favour recorded in the Revenue Records by means of a mutation entry. On the other hand, the opponent was admittedly the legal heir of the deceased Limba. Although Mr. Adik relied upon certain en-tries in the record of rights for the year 1955-56 showing that his client was in possession for that year at least, it is significant to note that he is not shown to have been in possession as an occupant. From an extract for an earlier year Mr. Adik pointed out a pencil entry showing that his client's name was entered as an occupant. But he was unable to point out any mutation entry in respect of the lands on the strength of the sale deed in his favour. These entries, in the opinion of the learned Taluka Magistrate, did not give any strength to the case of the applicant, obviously because such entries could easily be manipulated. For all these reasons, the learned Taluka Magistrate came to the conclusion that it must have been the opponent who was in possession of these lands all along ever since the death of her husband and that, if the applicant ever succeeded in getting possession of the lands, it must have been by unlawful means. In that event, in my opinion, it was perfectly legitimate for the learned Taluka Magistrate to hold that the possession of the legal heir of the deceased Limba should be protected rather than the alleged possession of the applicant claiming under a sale deed, which he thought, was passed in suspicious circumstances. Accordingly the Taluka Magistrate was, in my opinion, perfectly right in directing the Receiver to hand over possession of the lands to the opponent.

4. In the revision application before the learnedDistrict Magistrate, the entire matter seems to havebeen reviewed with great care and the learned District Magistrate also came to the conclusion thatthere was nothing to find fault with, in the orderpassed by the learned Taluka Magistrate. Heagreed with the order that was passed and dismissedthe application for revision. I, too, agree with thereasons set out and the orders made by both theTaluka Magistrate and the learned District Magistrate. I see no reason to interfere with the orderspassed by them. It the applicant has any grievanceagainst the order, it is not as if he has got noremedy at all. It is open to file a suit for declaration of his title and recovery of possession on thestrength of the sale deed alleged to have beenpassed in his favour by the deceased Limba a daybefore his death. But, so far as the present Chapterproceedings and the orders that have been passedtherein are concerned, I do not see any warrant formy interference with them. In the result, the application is dismissed and the Rule is discharged.

5. Rule discharged.


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