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Om Singh and Vs. Gaon Sabha and Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 186 of 1980
Judge
Reported in1981CriLJ940; 20(1981)DLT23
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145; Delhi Land Reforms Act, 1954 - Sections 86A
AppellantOm Singh and ;fateh Singh
RespondentGaon Sabha and Municipal Corporation of Delhi
Advocates: Roshan Lal,; Risal singh and; P.R. Monga, Advs
Cases ReferredHathi v. Sundar Singh
Excerpt:
.....was that because of order of ejectment by the revenue court, it was entitled to the possession of land. om singh on the other hand contended that since the decision of the civil court was in the favor, he was entitled to the possession of land. the sub-divisional magistrate, however, delivered the possession of the land to om singh. in revision,the additional sessions judge reversed the findings of the s.d.m. and held that under section 146(1e) of the order of the s.d.m. is subject to the subsequent decision of a court of competent jurisdiction. since revenue courts were courts of competent jurisdiction and having held that gaon sabha was entitled to the possession, the same could not be given to om singh. in the instant revision, while dismissing the same, it was.; 1. normally the..........were called upon to file their respective written statements regarding possession of the said land. om singh and fateh singh filed a written statement that they were in possession of the said land. kewal singh and narsingh dass filed a written statement on bealf of gaoa sabha. it was stated that om singh and fateh singh tried to encroach upon the land in question in the month of august, 1973, but they could not succeed and that the possession of the land was transferred to a school of municipal corporation of delhi who constructed a boundary wall 5 ft. high which was existence on the spot. municipal corporation of delhi, who is respondent no. 2 in the present petition was also imp leaded and it supported the stand of the gaon sabha. (3) after recording evidence shri k. n. bose, s......
Judgment:

G.R. Luthra, J.

(1) The present petition under Section 397, 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as New Code) and Article 227 of the Constitution of India is directed against an order dated June 4, 1980 of shri R. D. Aggarwal, Additional Sessions Judge, Delhi setting aside, in exercise of revisional jurisdiction, an order of a Sub-Divisional Magistrate and directing the petitioner to hand over possession of land measuring 1 bigha and 10 bids was comprised in field No. 428/309 in the Revenue Estate of Babarpur, Shahdara, Delhi.

(2) S.H.O. Shahdara, made a report dated September 2. 1973 to the effect that a dispute existed in respect of the aforesaid land. which was likely to cause breach of peace between Om Singh and Fateh Singh on one hand, and Kewal Singh, Pradhan of Gaon Sabha, Babarpur and Narsingh Dass on the other hand. Shri S. P. Prabhakar, the then S.D.M. Shahdara passed a preliminary order 'dated September, 1973 under Section 145 of the Code of Criminal Procedure 1898 (hereinafter referred to 'as old Code) and also attached the said property. Parties concerned were called upon to file their respective written statements regarding possession of the said land. Om Singh and Fateh Singh filed a written statement that they were in possession of the said land. Kewal Singh and Narsingh Dass filed a written statement on bealf of Gaoa Sabha. It was stated that Om Singh and Fateh Singh tried to encroach upon the land in question in the month of August, 1973, but they could not succeed and that the possession of the land was transferred to a school of Municipal Corporation of Delhi who constructed a boundary wall 5 ft. high which was existence on the spot. Municipal Corporation of Delhi, who is respondent No. 2 in the present petition was also imp leaded and it supported the stand of the Gaon Sabha.

(3) After recording evidence Shri K. N. Bose, S. D. M.Shahdara, vide his order dated July 31, 1975 expressed the view that he was unable to decide as to who was in possession of the land. thereforee, he referred the matter under Section 146(1) of the Old Code to the court of Senior Sub Judge, Delhi for deciding as to who was in possession of the land on the date of the preliminary order. Senior Sub Judge entrusted the reference to Shri J. P. Sharma, Sub Judge I Class, Delhi who passed an order dated October 12, 1978 to the effect that Om Singh was in possession of the land in dispute within two months before the date -of order of attachment of the land.

(4) After receipt of the reference from the civil court, Gaon Sabha came up with an application to the effect that it had obtained an order of ejectment against Om Singh under Section 86-A of the Delhi Land Reforms Act (hereinafter referred to as Reforms Act) from Revenue Court, that Om Singh went in appeal and revision and that ultimately his revision petition under Section 187 of the Reforms Act was dismissed by Shri K. C. Johary, Financial Commissioner and that. thereforee,, it was entitled to possession of the land. Contention of 0m' Singh was that as the finding of the civil court was in his favor, he was entitled to the possession of the land. The learned S. D. M. Shri Nathu Singh upheld, the contention of Shri Om Singh by means of an order dated December 2, 1978 and delivered the possession of the land to latter. .

(5) Gaon Sabha filed a revision petition against aforesaid order dated December 2, 1978 of 'the learned Sub Divisional Magistrate. Learned Additional Sessions Judge passed the impugned order on the following grounds :-

(1)Order of Shri J. P. Sharma, Sub Judge I Class, Delhi did not give any finding as to who was inpossession on the date of preliminary order. That order merely found that Om Singh was in possession of land within two months prior to the date of attachment of the land. According to Sub Section (4) of Section 145 Civil Court had to give finding as to who was in possession on the date of the passing of the preliminary order and that thereforee, finding of Shri J. P. Sharma that Om Singh was in possession within two months before the order of attachment of land was absolutely useless and could not be acted upon by the learned S.D.M.

(2)Accrding to Sub, Section (IE) of Section 146 any order passed by a S. D. M. on the basis of finding of a civil court shall be subject to any subsequent decision of a court of competent jurisdiction. Revenue Courts had held under the Land-Reforms Act that it was Gaoa Sabha who was entitled to the possession. thereforee, possession could not be delivered to Om Singh and must be deliverer to Gaon Sabha.

(6) The learned counsel for the petitioner relied upon the provisions of Sub Section (1-B) of Section 146 of the Old Code which reads as under :-

'THECivil Court, shall, as far as may be practicable, with in a period of three months from the date-of appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whome reference was made; and the Magistrate shall on receipt thereof, proceed to dispose of the proceedings under Section 145 in conformity with the decision of the Civil Court.'

The learned counsel for the petitioner conteads .that it is clear from a plain reading of the aforesaid provision that a Magistrate must proceed to dispose of proceeding? under Section 145 of Old Code in conformity with the decision of the civil court, which means that he cannot take into consideration any other thing except the finding of the civil court and that thereforee, the judgment of the revenue courts, relied upon by the learned Additional Sessions were totally irrelevant. Additional Sessions Judge to the eefec that the decisions of the civil court was useless. He policed out that on reading of the entire judgment of the civil court and especially para 4 of the same it was clear that the finding was that Om Singh was in possession of the land in dispute on date of preliminary order. He explained that it was not necessary that in the operative portion also civil court must hold as to who was inpossession on the date of the preliminary Order. He urged that although learned Sub Judge had not mentioned as to who was .in possession on the date of the preliminary order and had expressed an opinion with respect to possession on the date of attachment of the land, yet that did not make any difference because the date of the attachment of the land happened to be the same as date of preliminary order i.e September 28,1973.

(7) In support of his contentions that order of a Magistrate should in conformity with the finding of the civil court and that finding of a civil court, even if erroneous, cannot be set aside, the learned counsel relied a judgment of Allahabad High court in Badri Nath Pandey V. U.P. State & others : AIR1965All127 , a judgment of Patna High Court in Dewani Chaudhary and others vs. Chatuni Manibi and others , a judgment of Calcutta High Court in Chandi Kumar Sarkar v. Prabhat Kumar bids was : AIR1968Cal216 and a judgment of Madras High Court in Muthu Sathurayar and another vs. Louduswana Adayar& Others : AIR1959Mad111 .

(8) It was argued by the learned counsel that even otherwise decision of the revenue courts up to the level of Financial Commissioner, Delhi in favor of Gaon Sabha could not be taken into consideration under sub section (IE) of Section 146 of the Old Code and that the learned Additional Sessions Judge had wrongly relied upon the said provision. That Sub Section. (IE) reads as under:- -

'(LE)An order under this section shall be subject to any subsequent decision of a court of competent jurisdiction.'

The learned counsel points out that word 'subsequent' clearly indicated that the decision of a court of competent jurisdiction, so as to be effective, must be subsequent to an order of a Magistrate, that in the present case Order of the Financial Commissioner having been passed on 31st July 1975 was not subsequent to the order of the Magistrate passed on December 12, 1978 and that thereforee, order of the Financial Commissioner had no effect at all. The learned counsel also assailed the competency and jurisdiction of the revenue courts in respect of eviction order passed against Shri Om Singh.

(9) I do agree with the learned counsel that the order of the civil court must be read as a Whole and then it should be determined as to what the findings were. On the reading of the entire order and especially para 4 it is clear that according to the civil court Om Singh was in para 4 it is clear of the land on the date of the order of attachment as well as within two months prior to the same. There is also no doubt that the order of attachement was made on the same date on which preliminary order under section Section 145-of the Old Code was made. thereforee, the net result is that the finding of the civil court is that Om Singh was in possession of the land on the date of the preliminary order. That being so the order is neither useless nor vague and could be acted upon under the provisions of Section 146(IB) of the Old Code.

(10) Normally, the aforesaid order of the civil court would and should have been acted upon by the learned S.D.M.and the finding of the civil court could not be called in question in any appeal revision as held by different high courts, whose judgments have been relied upon by the learned counsel for the petitioner. I also agree that there is some force in the argument of the learned counsel that an order of a court competent jurisdiction which could nulify an order of a Magistrate, passed on the basis of a finding of a civil court, must have been subsequent to the latter order. But in the present case, the argument of the learned counsel do not take note of the provisions of sub Section (6) of Section 145 which says that any order passed under these proceedings Will be effective until the party is evicted there from due course of law. That Sub Section 6 of Section 145 reads as under in which relevant words have been under lined:-

'(6)If the Magistrate decides that one of the parties was or should under the second proviso to sub section (4) be treated as being in Such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there' from in due course of law, and forbidding all disturbance of such possession until such eviction and then he proceeds under the second proviso to sub section (4) may restore to possession the party forcibly and wrongfully dispossessed.'

In the present case, revenue courts, passed an order of eviction against Om singh under Section 86-A of the Land Reforms Act in respect of the the land in dispute and that order was maintained up to Financial Commissioner of Delhi who rejected revision petitioner of Om Singh vide an order dated July 30, 1975. That order of eviction must be given effect to It would be ridiculous if on one hand Om Singh is put in possession and then the Gaon Sabha is called upon to get the eviction order executed and obtain possession of the land. Orissa High Court in Nata Padhan and Others vs. Banchha Baral and others : AIR1968Ori36 made following observations in para 12 of the judgment :-

'THEexpression 'until evicted there from in due course of law' is not confined to an eviction through Civil Court. It speak of eviction through a Court of competent jurisdiction. Dispute between a landlord and bhag tenant is cognizable by the Revenue Court as provided under the Act. The effect of the final order u/s 145 Criminal Procedure Code . in between a landlord and a bhag tenant can be set at naught by appropriate proceedings before the Courts provided under the Act and not before a Civil Court which is not competent to entertain sirch dispute. In this case the 145 proceedings was in between defendants 1 to 3 and the plaint who were privies of defendant-4. The proceeding under the Act was in between defendants 1 to 3 and Gopal Satapathy, the predecessor-in-interest of defendant. 4, The order in 145 proceeding passed during the pendency of the suit, would be conterminous with the final order passed by the Board of Revenue in the proceeding under the Act on 11-5-56. A suit for eviction of defendant 4 or the plaintiffs in the Civil 'Court at the instance of defendants 1 to 3 would not be maintainable.'

It was held ultimately that notwithstanding finding to the effect that a party was in possession on the date of the preliminary order under Section 145 of Old Code, eviction order passed by the revenue courts must be given effect to.

(11) It is wrong on the part of the learned counsel for the petitioner to urge that revenue courts had no jurisdiction to pass an eviction order in the present case. It was held by the Supreme Court in Hathi v. Sundar Singh, : [1971]2SCR163 that jurisdiction of civil court was barred under section 185 Reforms Act when a revenue court had jurisdiction in respect of certain matters mentioned in column 7 of the 1st Schedule to the Reforms Act. In the present case, eviction order by the revenue courts was passed u/s 86-A of the Reforms Act. Proceedings u/s 86-A are mentioned at item No. 20-A of the Schedule and in column 7 it is stated that a Revenue Assistant will have the jurisdiction to entertain such proceedings. In the present case, it was Revenue Assistant who had initiated the proceedings and had passed an eviction order which was maintained up to the Financial Commissioner. thereforee, it was Revenue Court who had jurisdiction and was competent to pass eviction order.

(12) Under the above circumstances, the present petition has no force and is liable to be dismissed. However, I may mention that as was disclosed at the time of arguments, the petitioner had obtained an injunction restraining Goan Sabha from interfering with his possession during the pendency of some writ petition in the High Court, obviously, the petitioner cannot be dispossessed till the injunction continues.

(13) Hence, I dismiss the petition. However, the petitioner shall not be dispossessed till the injunction aforesaid in his favor continues. Gaon Sabha can keep a track of the happenings in the case in which injunction was given and as soon as that injunction is vacated, Gaon Sabha can get back possession of the land in question from the petitioner by way of applying to the trial court i.e., the court of learned Sub Divisional Magistrate Shahdara.


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