Skip to content


Yeshwant Ganpat Khot Vs. Anusayabai Anna Khot (Smt.) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 114 of 1978
Judge
Reported in1979CriLJ67
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145; Bombay Tenancy and Agricultural Lands Act - Sections 85A ;
AppellantYeshwant Ganpat Khot
RespondentAnusayabai Anna Khot (Smt.) and ors.
Appellant AdvocateB.Y. Deshmukh, Adv.
Respondent AdvocateV.T. Walavalkar and ;Narendra Walavalkar, Advs. for respondent No. 1; P.P Hudilkar, P.P.
DispositionPetition failed
Excerpt:
.....no right, title or interest has become final, the petitioner who claimed tenancy through him, must necessarily fail. magistrates exercising their jurisdiction under section 145 of the criminal procedure courts and do respect them in so far as they are consistent with their duties under section 145. this omission in the order passed by the learned sub-divisional magistrate was to a great extent made good by the learned sessions judge. deshmukh rightly complained, that the learned sessions judge has not specifically given a finding that the respondent was in possession of the lands either on the date of the preliminary order or within two months next immediately before the said date. as a corollary to this rule, if a civil court decides the question of possession even for the purpose of..........suit in the following terms : 'whether the plaintiff proves that defendant no. 1 has leased the suit lands to defendant no. 3 for a period of three years?' that issue was answered in the negative. this shows that if at all some question of the rights or title of the petitioner in respect of the lands was involved, it was only through the said laxman who was defendant no. 1 in that suit. by his judgment and order dated 31st march, 1970 the learned civil judge, senior division, decreed the suit and directed that defendant no. 1 (laxman) shall within one month from that date put the plaintiff in possession of the property in the suit. if was not done, the plaintiff in that suit was to obtain possession through the court.4. for executing the said decree, regular darkhast no. 32 of 1975.....
Judgment:

R.A. Jahagirdar, J.

1. Twelve pieces of lands situated at Villages Walva and Bavchi in Walva Taluka of Sangli District were the subject-matter of the proceedings under section 145 of the Criminal Procedure Code. On a report submitted by the Deputy Superintendent of Police, Sub-Divisional Magistrate of Walva, Division Sangli, registered a case, being Criminal Case No. 5 of 1977 in respect of the said lands. The preliminary order of his being satisfied that there is an apprehension of a breach of peace was made on 29th September, 1977. Thereafter, on recording evidence and hearing the parties, he passed an order on 29th December, 1977 that the petitioner before me who was Party No. 1 before him was in possession of the lands in dispute. Accordingly he issued an order prohibiting respondent No. 1 before me and Party No. 2 before him from disturbing the possession of the petitioner. This order was challenged by respondent No. 1 (hereinafter referred to as the 'respondent') in Criminal Revision Application No. 19 of 1978 which was heard and allowed by the learned Sessions Judge of Sangli by his Judgment and order dated 7th April, 1978. While so allowing the appeal, the learned Sessions Judge considered some decisions of the Civil Courts which have been unfortunately ignored by the Sub-Divisional Magistrate and came to the conclusion that the respondent and not the petitioner was in possession of the lands in dispute. It is this order of the learned Sessions Judge that is challenged by original Party No. 1 in this application.

2. Before, I proceed to take into account the very strong and rigorous argument made by Mr. B.Y. Deshmukh appearing in support of the petition, let me narrate chronological some of the facts which are, in my opinion, established on the basis of the record.

3. One Laxman Ganpati Khot who is the brother of the petitioner set up a claim at sometime that he was the adopted son of the respondent who was, therefore, compelled to file a suit, being Special Civil Suit No. 61 of 1968. In that suit that natural father of the petitioner and the said Laxman were joined as defendant No. 2, while the elder brother of Laxman who is the present petitioner was joined as defendant No. 3. There was a defendant No. 4 to whom no reference need be made in this present judgment. Several defences were taken on behalf of the defendants in that suit who included the present petitioner. From the judgment delivered in that suit, it is clear to my mind that there was a common defence of the three defendants in that suit which was that Laxman defendant No. 1, was the lawfully adopted son of the plaintiff in that suit (respondent here). It must also be mentioned that present petitioner did not set up any claim in that he was the tenant of the lends which belonged to the respondent. However, an issue was raised at much later stage of the suit in the following terms : 'Whether the plaintiff proves that defendant No. 1 has leased the suit lands to defendant No. 3 for a period of three years?' That issue was answered in the negative. This shows that if at all some question of the rights or title of the petitioner in respect of the lands was involved, it was only through the said Laxman who was defendant No. 1 in that suit. By his judgment and order dated 31st March, 1970 the learned Civil Judge, Senior Division, decreed the suit and directed that defendant No. 1 (Laxman) shall within one month from that date put the plaintiff in possession of the property in the suit. If was not done, the plaintiff in that suit was to obtain possession through the Court.

4. For executing the said decree, Regular Darkhast No. 32 of 1975 was started and in those execution proceedings two kabje-pawatis came to be executed on 27th August, 1975. In both these kabje-pawatis there is a specific mentioned that at the time of taking the possession of the lands in execution of the decree, both the petitioner and his brother Laxman were present. It is also mentioned that actual possession of the lands was given to the respondent who was asked to pay the cost of the standing crop at the time. There is considerable controversy between the parties in these proceedings and especially between the Advocates appearing before me as to whether actual possession was ever taken from the petitioner and handed over to the respondent. For the purpose of an appropriate finding in the present proceedings and for the purpose or disposal of this petition, it is enough to mention that there is a specific mention in these two kabje-pawatis that actual and not symbolical possession was given of the lands. So also the presence of the petitioner at the time of taking possession is mentioned in the kabje-pawatis.

5. The petitioner thereafter on 4th December, 1975 filed a suit, being Regular Civil Suit No. 507 of 1975, in the Court of the Civil Judge, Junior Division, at Islampur, praying, among other things he was in possession of the lands and for injunction restraining the respondent from interfering with his alleged possession. In the said suit he made an application, being Exhibit 25, for an interim injunction pending the final hearing and disposal of the suit. The question that had to be undoubtedly considered in that application was whether the petitioner was in possession of the lands to merit an order of injunction restraining the respondent from disturbing his possession. That question was answered in the negative by the learned trial Judge by his judgment and order dated 8th March, 1976. While so doing, the learned trial Judge considered, among other things, the kabje-pawatis which came into existence in execution of the decree passed in Special Civil Suit No. 61 of 1968. This order of the trial Court was confirmed by the learned District Judge of Sangli by his judgment and order dated 23rd August, 1977 in Miscellaneous Civil Application No. 16 of 1976. In his judgment the learned District has pointed out that in the absence of the mention of a symbolical possession of the kabje-pawatis, it must be presumed that actual possession of the lands was handed over to the decree holder. In my opinion, also when it is mentioned that possession of certain property is given, the natural meaning is that physical possession is given unless it is mentioned otherwise. An issue as to whether the petitioner was the tenant of the lands was raised in the suit filed by him and that was referred under section 85-A of the Bombay Tendency and Agricultural Lands Act to the tenancy Court and the Tahsildar of Walva by his judgment and order dated 21st July, 1977 has held that the petitioner has proved that he is the tenant of the lands since the year 1964-65. In the judgment he has also mentioned that the fact of possession and of cultivation of the suit lands by the petitioner in the capacity of the tenant has been abundantly proved by voluminous evidence both documentary evidence and oral.

6. The apparently conflicting decisions set the stage for the present dispute under section 145 of the Code of Criminal Procedure which has now reached this Court its revisional jurisdiction. The learned Sub-Divisional Magistrate referred to the kabje-pawatis, among other things and came to the conclusion that the petitioner was in possession of the lands in dispute. In my opinion, there has been a basic error committed by the learned Sub-Divisional Magistrate in the interpretation of the kabje-pawatis. He proceeded to hold that as per the Kabje-pawatis only symbolical possession could have been given, because the petitioner was the tenant of the lands. He thought that in the suit which the respondent had filed, she had not claimed any relief against the petitioner and since the decree passed in that suit directed that the possession should be taken from defendant No. 1 in that suit, he proceeded to infer that the possession of the petitioner was not to be disturbed. In my opinion, this inference is wholly untenable. I have already referred above in some detail to the recitals of the kabje-pawatis and also to the points involved in the Civil Suit. At no time the petitioner had contended that he was the tenant of the suit lands through the respondent. It is true that an issue was raised as to whether he was a tenant through defendant No. 1 in that suit and it was answered in the negative. If the finding that Laxman who was defendant No. 1 in that suit was not the adopted son of the respondent and, therefore, had no right, title or interest has become final, the petitioner who claimed tenancy through him, must necessarily fail. Therefore, till the possession of the lands was taken on 27th August, 1975, there is no material which discloses that the petitioner had set up a tenancy in respect of the lands. The learned Sub-Divisional Magistrate was, therefore, in error in coming to the conclusion that the kabje-pawatis evidence that the possession was taken only from Laxman and not also from the petitioner. If the kabje-pawatis mention that actual possession was given and in support of this recital, there is other evidence in the kabje-pawatis itself such as the payment of the price of the crop by the respondent, it would be hazardous to infer that actual possession of the lands was not taken by the respondent.

7. This infirmity in the judgment of the Sub-Divisional Magistrate was noticed by the learned Session Judge who also took, as indeed he was bound to take, into account the two orders passed by both the trial Court and the Appeal Court in the suit instituted by the petitioner. The two orders passed on 8th March, 1976 and 23rd August, 1977, indicate that there was no prima facie evidence that the petitioner was in possession of the lands, at least on 4th December, 1975 when the suit was filed. Unfortunately the Sub-Divisional Magistrate totally ignored these two orders through they had been tendered in evidence before him. Magistrates exercising their jurisdiction under section 145 of the Criminal Procedure Courts and do respect them in so far as they are consistent with their duties under section 145. This omission in the order passed by the learned Sub-Divisional Magistrate was to a great extent made good by the learned Sessions Judge. Since these two orders indicates that the petitioner was not in possession of the lands on 4th December, 1975 and since there was nothing to show that subsequently there has been any change in the possession, the conclusion that would naturally follow was that in the month of September, 1977 the respondent was in possession. The learned Session Judge, therefore, set aside the order passed by the Magistrate below him and directed that the respondent was in possession of the property in dispute and further that her possession should not be disturbed except in accordance with law. This order of the learned Sessions Judge is challenged by party No. 1 in the present revision application.

8. I have given sufficient indication of my assessment of the facts and law involved in these proceedings of show that I have approved of the view taken by the learned Sessions Judge. Mr. Deshmukh, the learned Advocate appearing for the petitioner has, however, contended that the finding of the Tenancy Court given on 21st July, 1977 that the petitioner was a tenant of the lands in question since the year 1963-64 cannot be lightly ignored. On the other hand, considerable weight attaches to the finding given by the Tenancy Court which is a Court of competent jurisdiction to decide the question of the tenancy of the petitioner. While one cannot quarrel with the proposition that it is a Tenancy Court alone which can given a binding decision on the issue of tenancy, one cannot however, further agree with Mr. Deshmukh that even on the question possession the finding of the Tenancy Court ought to be respected. The question whether a person is or is not in possession is not a matter which falls within the exclusive jurisdiction of the Tenancy authorities either under section 70 of the Bombay Tenancy Act or under any other section of that Act. On this question the decision of the Civil Court will have a precedence.

9. Mr. Deshmukh then proceeded to assail the judgment of the Sessions Court by contending that what is to be decided in proceedings under section 145 of the Code of Criminal Procedure is the possession of a party within two months next before the date of the preliminary order. The preliminary order in the present case was passed on 29th September, 1977 and according to Mr. Deshmukh, the learned Magistrate had given a finding regarding the petitioners possession within two months before the date of the preliminary order. This limited nature of the jurisdiction of the Court under section 145 has escaped, according to Mr. Deshmukh, the attention of the learned Sessions Judge who has proceeded to discuss the question of possession on a broader canvass unwarranted by the Code of Criminal Procedure. It is true, as Mr. Deshmukh rightly complained, that the learned Sessions Judge has not specifically given a finding that the respondent was in possession of the lands either on the date of the preliminary order or within two months next immediately before the said date. But, in my view, in the acceptance of the finding given by the both the trial Court and the Appeal Court in Regular Civil Suit No. 507 of 1975 is implicit the finding that the possession has continued from 4th December, 1975 onwards. This finding deserved appropriate respect from the learned Sub-Divisional Magistrate. There is nothing in the judgment of the learned Sub-Divisional Magistrate to show that between 4th December, 1975 and the date on which he passed the preliminary order, there was any further change of possession. Mr. Deshmukh referred to certain decisions of the Supreme Court and two High Courts for the purpose of showing the extent of the jurisdiction of a Court under section 145 of the Code of Criminal Procedure. I have not thought it fit to refer to the same, because I accept Mr. Deshmukh's contention in regard to the limited nature of the jurisdiction of a authority under section 145.

10. In so far as the value of the judgments given by the civil courts relating to the possession of the parties, Mr. Walavalkar appearing for the respondent relied upon several decisions, some of which alone may, however, be referred to. In Imambu v. Hussenbi A.I.R. 1960 Mys. 203. K.S. Hegde, J. as he then was, pointed out that a Magistrate acting under section 145 ought to respect any recent decision given by a competent Civil Court on the question of possession. As a corollary to this rule, if a Civil Court decides the question of possession even for the purpose of giving an interim relief, the Magistrate acting under section 145 should respect that decision as well. This view is echoed in Multani v. Shah Abdul Turab Qadari , of the same High Court. In this decision it has been emphasised that the decision of the Civil Court is not to be confined to a final decision in the suit by way of decree and that even if the an interim injunction is granted for the duration of a pending suit for perpetual injunction the Civil Court does come to a prima facie finding that the party in whose favour it grants injunction is in possession of the property in respect of which the injunction is granted. Such a decision of the Civil Court must be followed and sustained by the Magistrate. I respectfully agree with the view taken by the Mysore High Court in the above two decision.

11. In the instant case, the learned Sub-Divisional Magistrate has totally ignored the recent decisions of the Civil Courts in respect of the possession. There was thus an impropriety in the manner of exercise of the jurisdiction by high and it was liable to be corrected by the learned Sessions Judge, though he was exercising revisional jurisdiction.

12. In the result, this petition must fail. Rule is discharged. The order passed by the learned Sessions Judges of Sangli on 7th April, 1978 in Criminal Revision Application No. 19 of 1978 is confirmed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //