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Vipra Manishankar Vaghji Vs. Shavji Govinda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ1253
AppellantVipra Manishankar Vaghji
RespondentShavji Govinda and ors.
Excerpt:
.....would not be justified in differing from them. 4. arguments were addressed to us that the talati had failed to comply with the mandatory provision of section 200 of the junagadh state land revenue code in delivering possession of the land to the applicant and therefore his proceedings cannot have the effect of transferring possession to the applicant and cannot be the basis of even a suit for possession......1 directing the opponents to file their written statements respecting their claim with respect to actual possession of the land. in their written statements the opponents denied that the applicant was in possession of the land and contended that the land was in their actual possession. the learned magistrate after recording the evidence of the parties held that on the date of the preliminary order the opponents were in actual possession of the land. with regard to the proceedings of the talati, he held that the applicant was merely given symbolical possession and the actual possession continued to remain with the opponents. he also held that the proceedings of the talati were not in accordance with the land revenue code of the junagadh state, he having failed to give one month's notice.....
Judgment:

Baxi, J.

1. This revision arises out of an application which the present applicant presented to the First Class Magistrate, Junagadh, in respect of certain land under Section 145, Criminal P.C. The land comprises of a field and a wadi in Rampur.

2. The land in question belonged to Nizam Mahomed Khanji the Barkhalidar of Ranpur under the former Junagadh State and measured about 100 Vighas. The applicant and one Jivram Rugnatli were the lessees from the Barkhalidar but to 1944 A.D. the Barkhalidar resumed the land from them and handed it over to the opponents on payment of Nazrana while he gave the applicant and his co-sharers 40 Vighas of land in exchange, The applicant's co-sharer is not a party to these proceedings and all references will hereafter be made to the applicant only in connection with this land and the proceedings connected with it. After the administration of the Junagadh State was taken over by the Government of India, the Junagadh Government published notification No. R/230 dated 4.8.1948 appointing a Committee to inquire into cases of irregularity and high-handed action in respect of Chav lands and houses etc. resulting in eviction of established tenants by landlords. The Committee was to make a report and the Junagadh Government or an authority nominated by them were empowered to pass orders on the report of the Committee and their orders were declared to be final and it was directed that they should be enforced under the Revenue Procedure obtaining in the State. By another notification No. R/231 of 1948 of the same date rules of business of the Committee were framed. Both these notifications were published in the Junagadh State Gazette dated 6.8.1948. After the establishment of this Committee the applicant applied for restoration of the land to the Committee which made a report upon it. The Government of Saurashtra with which the Junagadh State was integrated by this time passed an order dated 5.4.1951 directing that the land in question should be handed over to the applicant and the land which was given to him in exchange should be returned to the Barkhalidar. The Talati of the Khambhalia group villages was instructed to execute the order by delivering possession to the applicant.

Thereupon on 15.4.51 the Talati went to Ranpur, called the opponent No. 1 at the utara and in the presence of the panchas asked him to hand over possession of the land to the applicant. The opponent however refused to comply with the order. The Talati made a rojkam Ex. 27 at the utara recording these facts. He then proceeded to the land with the applicant and the panchas and handed over possession to him and made two rojkams on the spot Exs. 28 and 29. The dispute about the possession of this land however continued between the applicant and the opponents. The opponents gave a notice to the Government under Section 80, Civil P.C. and applied for a stay of execution of their order and the applicant filed two complaints against the opponents under Section 447, I.P.C. and also moved the First Class Magistrate to take proceedings against them under Section 107, Cr.P.C. Ultimately on 15.5.51 the applicant filed the present application against the opponents under Section 145, Cr.P.C. complaining of disturbance to his possession and praying for an order against them', forbidding interference With it. On the same day the learned Magistrate passed a preliminary order under Sub-section 1 directing the opponents to file their written statements respecting their claim with respect to actual possession of the land. In their written statements the opponents denied that the applicant was in possession of the land and contended that the land was in their actual possession. The learned Magistrate after recording the evidence of the parties held that on the date of the preliminary order the opponents were in actual possession of the land. With regard to the proceedings of the Talati, he held that the applicant was merely given symbolical possession and the actual possession continued to remain with the opponents. He also held that the proceedings of the Talati were not in accordance with the Land Revenue Code of the Junagadh State, he having failed to give one month's notice to the opponents as requited by Section 202 of the Code and therefore they could not have the effect of transferring possession to the applicant and on these findings he dismissed the application. A receiver was appointed in the course of the proceedings and the produce of the land in question was sold by the receiver and he was directed to hand over the net proceeds of the produce to the opponents. The present applicant preferred a revision to the Sessions Judge, Sorath Division against the order of the learned Magistrate without success and he has now applied to this Court in revision against the learned Judge's order.

3. The applicant's application alleges that he was forcibly dispossessed by the opponents within two months of the preliminary order and if this is so, he should be treated as if he had been in possession at such date and he is entitled to an order declaring him to be entitled to possession of the land and forbidding all disturbance of possession and also to an order of restoration of possession of the land to him. It is admitted that the opponents were in actual possession of the land as the Barkhalidar's lessees up to the date of the Talati's proceedings dated 15.4.1951 under Which according to the applicant he was put in actual possession. The criminal proceedings under Section 447, I.P.C. between the parties preceding the present application under Section 145 to which we have already referred show that his case is that he was forcibly evicted by the opponents from the land. The opponents' contention is that they continued to be in possession inspite of the Talati's proceedings. Now if these proceedings are construed as having put the applicant in actual possession, he is entitled to an order of restoration for possession but if only symbolical possession was delivered to him by these proceedings the opponents' actual possession cannot be said to have been transferred to the applicant and consequently the opponents must be deemed to have continued in actual possession of the land upto the date of the preliminary order and the applicant's application must be dismissed. Under the circumstances it is necessary to discuss the nature of the possession which was delivered to the applicant.

Where an order is made for the delivery of the immoveable property possession thereof may be delivered to the party to whom it has been adjudged by removing if necessary any person bound by the order who refuses to vacate the property. Where however the property is in the occupancy of a tenant or other person entitled to occupy same and not bound by the order to relinquish such property, the property may be delivered to him by what is called delivering symbolical possession of the property. This is how possession is delivered under the C.P.C. in execution of a decree or order and we have not been shown that the rule is different in the case of evictions under the Land Revenue Code. Now if the opponents were bound by the Government's order of eviction the Talati's proceedings must be construed as having delivered actual possession to the applicant by removing them. If however they were not bound by the order only symbolical possession could have been delivered to the applicant. The opponents would be bound by the order if they were made parties to the proceedings before the Committee and the Government's order restoring possession to the applicant made on the report of the Committee had been directed against them. The Government's order is not very clear on this point for, it merely directs that the possession of the land should be restored to the applicant. The applicant could however have proved that the opponents were parties to the proceedings before the Committee by producing a certified copy of the original application which he had made to the Committee. Under the rules of the business of the Committee the names of the parties to the dispute have to be stated in the application and if the applicant's original application had been produced it would have been whether the opponents were parties to the proceedings or not. That application was however not produced and we have therefore to ascertain from other materials whether the opponents were parties to the proceedings before the Committee.

The notification No. R/230/ of 1948 under which the Committee was established empowered it to inquire into cases of irregularity and high-handed action resulting in eviction of established tenants by landlords. The scope of the inquiry before the Committee is confined by Rule 2 of the rules of business, amongst other things to evictions in respect of chav lands and houses etc. and the Committee is further empowered, after previous reference to the Revenue Member to inquire into glaring cases of unjustified eviction or any other cases of injustice brought to its notice. These rules suggest that the inquiry is to be directed against the high-handed or irregular eviction of a tenant by the landlord and prima facie he is the party to the dispute, except perhaps where it is shown that the tenants who have been brought by him on the land subsequent to the eviction of the evicted tenant were parties to such irregularity or high-handed eviction. It was not suggested to us that the opponents had in any way contributed to the applicant's eviction and it would not be proper to hold in these circumstances that the opponents were made parties to the proceedings before the Committee. No doubt the opponent No. 1 was examined before the Committee and the Government's order Ex. 33 does say that the land was in their possession but from these facts only it cannot be held that the opponents were parties to the proceedings. The learned Magistrate as well as the learned Sessions Judge have held that the opponents were not parties to the proceedings before the Committee and on the materials on record, we would not be justified in differing from them.

Under the circumstances we hold that the opponents were not parties to the proceedings before the Committee and therefore could not be directed to deliver possession of the land to the applicant. That order therefore can be executed against the opponents by delivering symbolical possession to the applicant leaving him to take such steps as he may be advised for obtaining actual possession and the Talati'a proceedings cannot amount to any more than delivery of symbolical possession of the land to the applicant. The actual possession of the land thus continued undisturbed and consequently it must be held that they were in actual possession of the land on the date of the learned Magistrate's preliminary order. The applicant's application was therefore rightly dismissed by him. His order directing the receiver to pay the net proceeds of the produce of the land to the opponents is a consequential order and must be confirmed.

4. Arguments were addressed to us that the Talati had failed to comply with the mandatory provision of Section 200 of the Junagadh State Land Revenue Code in delivering possession of the land to the applicant and therefore his proceedings cannot have the effect of transferring possession to the applicant and cannot be the basis of even a suit for possession. Under the provisions of this section before a person can be evicted from agricultural land in execution of an order of eviction under any law one month's notice should be served on him. Section 202 of the Bombay Land Revenue Code which has been applied to Saurashtra is also to the same effect except that the Bombay Code requires that reasonable notice must be given to the person to be evicted. In this case, it is not shown that any notice was served on the opponents calling upon them to vacate the land except the oral demand of the Talati requiring the opponent No. 1 to deliver possession to the applicant immediately. The question whether the Talati complied with the provisions of the Land Revenue Code and what would be the effect of non-compliance with those provisions raises important questions which in our opinion it is not necessary to decide in these proceedings. Our finding that the opponents were in actual possession of the land on the date of the preliminary order is sufficient to dispose of the present revision and therefore we do not wish to express any opinion on this question and would leave it for determination between the parties in a civil suit.

5. For the above reasons the revision is ordered to be dismissed. In view of the complicated questions involved in these proceedings we make no order as to costs.

Shah C.J.

6. I agree.


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