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Ratan Lal Vs. Srimati Chauhana and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1972CriLJ813
AppellantRatan Lal
RespondentSrimati Chauhana and anr.
Excerpt:
- - ratan lal and shanker was in possession of the disputed land within a period of two months from the date of the preliminary order, under section 145 (1) of the code of criminal procedure the magistrate is empowered to pass a preliminary order under section 145 when he is satisfied about existence of a dispute likely to cause a breach of peace either upon a police report or other information......party no. 1 and thereupon the magistrate passed the preliminary order on 16-1-1967 attaching the disputed land and requiring the parties to file their written statements by 10-2-1967. the magistrate had directed that the preliminary order shall be served on ratan lal applicant and smt. chauhana, opposite party no. 1 and that they may put in their respective claims as regards possession of the disputed land by 10-2-1967. in accordance with the magistrate's order the disputed land was attached by the police in the presence of opposite parties who were witnesses to the attachment memo. ratan lal and opposite party no. 1 'smt. chauhana did not file any written statements before the magistrate. on 4-8-1967 shanker opposite party no. 2 moved an application before the magistrate stating '.....
Judgment:

O.P. Trivedi, J.

1. This revision has been filed at the instance of Ratan Lal and arises from the order dated 5-8-1968 passed by the Civil and Sessions Judge, Lucknow. challenging the order of the Sub-Divisional Magistrate, Lucknow. dt. 1-5-1968 under Section 145 (6). Cr. P. Code.

2. The facts leading to this revision briefly stated are these. On 5-11-1966 an application was filed by the revisionist Ratan Lal under Section 145. Code of Criminal Procedure before the Sub-Divisional Magistrate. Lucknow alleging dispute between himself and Smt. Chauhana, wife of Shanker in respect of two plots of land upon which the Magistrate called for a report from the police. The police reported that there was a dispute between - Ram Ratan and Smt. Chauhana opposite party No. 1 and thereupon the Magistrate passed the preliminary order on 16-1-1967 attaching the disputed land and requiring the parties to file their written statements by 10-2-1967. The Magistrate had directed that the preliminary order shall be served on Ratan Lal applicant and Smt. Chauhana, opposite party No. 1 and that they may put in their respective claims as regards possession of the disputed land by 10-2-1967. In accordance with the Magistrate's order the disputed land was attached by the police in the presence of opposite parties who were witnesses to the attachment memo. Ratan Lal and opposite party No. 1 'Smt. Chauhana did not file any written statements before the Magistrate. On 4-8-1967 Shanker opposite party No. 2 moved an application before the Magistrate stating ' that Smt. Chauhana. his wife had nothing to do with the disputed land and prayed for being made a party to the proceedings. The Magistrate did not pass a specific order of impleadment of Shanker. However, the same day the Magistrate permitted Shanker, opposite party No. 2 to produce evidence in support of his case. On 21-8-1967 Shanker filed a written statement claiming his own possession over the disputed land and denying the applicant Ratan Lai's possession. It was further alleged that Ratan Lal was trying to secure forcible possession of the land. In other words, he alleged by implication in the written statement that there was an existing dispute between him and Ratan Lal over the disputed land. Thereafter an affidavit' was filed by Smt. Chauhana saying that the disputed land was in the possession of Shanker Lal, her husband and that Ratan Lal was trying to oust him therefrom. An affidavit was filed by Ratan Lal also in which he asserted his own possession over the land and alleged that Smt. Chauhana. her husband and her son wanted to occupy the land by force. It further alleged that Shanker had cut away some trees and intended to reap the crop raised by Ratan Lal, Thereafter by order dated 2-12-1967 the Magistrate made a reference under Section 146, Code of Criminal Procedure to the Civil Court on the question of possession. The Civil Court returned a finding to the effect that Smt. Chauhana and Shanker opposite parties 1 and 2 were in possession of the disputed land on the date of the preliminary order. On the basis of this finding final order was passed by the Magistrate on 1-5-1968 restraining the applicant Ratan Lal from disturbing possession of Smt. Chauhana and Shanker opposite parties 1 and 2 unless they are ousted by a competent court of law. The attached land was ordered to be released in favour of the opposite parties. Against this order a revision was filed before the Sessions Judge which was rejected and therefore Ratan Lal comes to this Court.

3. In arguments only one point was raised by the learned Counsel and it was this that Shanker, opposite party No. 2 was never a party to the proceedings before the Magistrate and therefore the Magistrate committed an illegality in making a reference to the Civil Court with respect to him and also in releasing the property in his favour jointly with Smt. Chauhana. None appears for the Opposite Parties and on a consideration of the material .on record I am of the opinion that this submission of the learned Counsel is unsound in law. No doubt Shanker was not a party to the proceedings when the preliminary order was passed by the Magistrate under Section 145, Code of Criminal Procedure because in the application of Ratan Lal dated 5-11-1966 dispute and apprehension were alleged only against Smt. Chauhana but Shanker appears to have been treated by the Magistrate as a party to the proceedings then he appeared and moved an application for being impleaded as a party when he disputed Smt. Chauhana's possession and when the Magistrate permitted him to file a written statement in which not only did he assert his own possession but also alleged by necessary implication the existence of a dispute regarding this land between him and Ratan Lal such as led to an apprehension of breach of peace between them. It is true that under Section 145 (1) of the Code of Criminal Procedure notices of the preliminary order go to the parties concerned in such dispute but under Sub-section (31 of Section 145 a copy of the preliminary order has to be published or affixed to some conspicuous place at or near the subject of dispute and having regard to Sub-section (5) of Section 145 any person interested in the disputed property other than the 'parties concerned' is entitled to file an objection before the Magistrate to show that no such dispute exists or has existed and to urge for cancellation of the preliminary order. That being so, upon publication of the preliminary order in accordance with Sub-section (3) of Section 145 it was open to Shanker to come forward as a Person interested in the land on the basis of possession and to pray for cancellation of the preliminary order, and the order of attachment, on the ground that although he was in possession no dispute was alleged to exist between him and Ratan Lal. But in the present case Shanker did not pray for cancellation of the preliminary order on the ground that no such dispute as contemplated by Section 145 (1) of the Code of Criminal Procedure existed between himself and Ratan Lal. On the other hand, he alleged the existence of such a dispute between himself and Ratan Lal. In the circumstances there was no occasion for the Magistrate to enter into an enquiry about the existence of a dispute on the motion of Shanker in terms of Sub-section (5) of Section 145 of the Code of Criminal Procedure. There was vet another aspect of the matter which entitled the Magistrate to enter into the question as to which of the parties amongst Smt. Chauhana. Ratan Lal and Shanker was in possession of the disputed land within a period of two months from the date of the preliminary order, - Under Section 145 (1) of the Code of Criminal Procedure the Magistrate is empowered to pass a preliminary order under Section 145 when he is satisfied about existence of a dispute likely to cause a breach of peace either upon a police report or other information. The application of Ratan Lal dated 5-11-1966 against Smt. Chauhana coupled with the police report supporting it was the first basis for the Magistrate to pass a preliminary order on 16-1-1967. Another basis for proceedings under Section 145 between Ratan Lal and Shanker with respect to the same land was provided by the allegations made in the affidavit of Ratan Lal containing the allegation that Smt. Chauhana, her husband and son wanted to take forcible possession of the disputed land and that Shanker not only cut some trees from the land but was also threatening to harvest his crop. The contents of that affidavit could be treated as 'other information' within the meaning of Section 145 (1) of the Code of Criminal Procedure and conferred on the Magistrate jurisdiction to treat Shanker also as a concerned party. It was from this point of view that the Magistrate appears to have acted within jurisdiction in making a reference under Section 146 on the question of possession by treating Shanker also as an opposite party. The order passed by the Magistrate therefore was not without jurisdiction.

4. This revision is without force. It is accordingly dismissed.


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