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Manak Chand and anr. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1968CriLJ1386
AppellantManak Chand and anr.
RespondentState and ors.
Cases ReferredDinomoni Chowdharani v. Broji Mohini
Excerpt:
- - that party, therefore, cannot in revision be heard to complain of excess of jurisdiction in the proceedings by the magistrate under section 145, criminal p. i fail to appreciate the argument of learned counsel for the petitioners as to how the finding of the civil court has travelled beyond the question referred to it by sub-divisional magistrate, ajmer. where from the evidence, the magistrate was satisfied as to there being likelihood of breach of the peace. in a matter like this, the magistrate does not purport to decide a party's title or right to possession of land but reserves that question to be decided by a civil court......out above, the actual dispute between the rival parties pertains to the right of session of land. party no. 2 contested the case both in the court of the sub-divisional magistrate as also in the court of the munsiff, ajmer city. it led evidence. it cannot now challenge the preliminary order at this stage on the point of jurisdiction, when the finding of both the munsiff and the sub-divisional magistrate went against it. the first contention of learned counsel or the petitioners, therefore, is of no substance.7. i now switch on to the second contention. the sub-divisional magistrate formulated a reference that the case be forwarded to the district munsiff, ajmer, to decide the questions whether any or which of the parties was in possession of he subject of the dispute at the date.....
Judgment:
ORDER

L.S. Mehta, J.

1. In Pushkar, near Maliyanka Chowk, Bari Basti, there is 'Sthanak' of the (sic)swal community. It is marked towards the (sic)outh in the site-plan Ex. P. 1. Towards the (sic)orth site-plan there is the house of Mst. Rame(sic)hari Sunar. The plot over which this house (sic)ists was admittedly purchased by Mst. Rame(sic)hwari from Bal Krishna Brahman of Pushkar, on December 9, 1959, for Rs. 2,500. This plot is marked M in the said plan. The place of dispute comprises the spot marked CDFG in the plan in between the 'Sthanak' and the house of Mst. Rameshwari. This plot measures 21' 8.' The Oswal community contends that the said plot is owned and possessed by it; whereas Mst. Rameshwari Devi claims it to be her property and is included in her sale-deed executed by Bal Krishna, Ex. A. 1, dated December 9, 1959. The Oswal community also contends that the lane owned by it was used as a passage for going towards the 'Sthanak' through the gate marked Y in the plan. Mst. Rameshwari Devi put up a latrine in the land and also a gate at the place marked in the plan. The Oswal community further pointed out that Mst. Rameshwari Devi was not legally authorised to block the way and build a latrine. Apprehending breach of the peace a complaint was made by the Oswal community under Section 145, Criminal P.C. On 21st December 1961, the Station House Officer, Pushkar, submitted a report to the Sub-Divisional Magistrate, Ajmer, wherein it was stated that the 'Sthanak' had been in existence for the last several years. The opposite party started construction over the land, as a result of which the common passage stood blocked. This passage had been in existence for about 40 years. It was also reported by the Station House Officer that the construction made by the opposite party was illegal and that the disputed land was under lawful possession of the Oswal community. The opposite party not only encroached upon the land illegally but was adopting an aggressive attitude, which was likely to result in breach of the peace. The Station House Officer, therefore, submitted that the opposite party should be dealt with according to the provisions of Sections 145 and 147, Criminal P.C., with a view to avert breach of the peace. On receipt of this report, Sub-Divisional Magistrate, Ajmer, drew up a preliminary order on 4th January 1962, in accordance with Section 145, Criminal P.C., and the parties were called upon to attend his Court and to put in their statements in regard to their respective claims. The parties were also directed to produce documentary evidence or affidavits in support of their respective claims. In pursuance of the preliminary order, party No. 1, i.e., the Oswal community, filed its statements on 14th March 1962, in which it was contended that the land had been purchased by it from Chunnilal Brahmin on Sawan Sudi 5, Samvat year 1990 (somewhere in the year 1933) for using it as a passage for going to their 'Sthanak'. It was also mentioned in the said statement that the deceased Chunnilal's son Bal Krishna confirmed the sale. Party No. 1, produced affidavits of Hiralal, Kan Mal, Inder Chand Madan Lal, Ratanlal, Madan Chand and Bal Krishna. The substance of those affidavits is that the plot was bought by the Oswal community from Chunnilal deceased 28 years back and that patty No. 2 was forcibly blocking the way by putting up shutters etc. on the land. It was also stated in the affidavits that the plot in dispute was not included in the sale-deed of party No. 2.

2. Party No. 2, filed a statement wherein it was given that the plot was purchased by Mst. Rameshwari Devi from Balkrishna for Rs. 2,5000/- and in that plot the disputed land was included. In support of this assertion two documents were submitted. Ex. A. 2, dated 3rd December 1959, is the agreement for sale and Ex. A-1, dated 9th December 1959, is the registered sale-deed. Both these documents were executed by Bal Krishna. Party No. 2 also put up affidavits of Mst. Rameshwari Devi and Manak Chand Sunar; wherein it was given that the disputed plot of land was bought by Mst. Rameshwari Devi from Bal Krishna, son of Chunnilal for Rs. 2,500/- in 1959, and that the opposite party had been in possession of the land ever since. The opposite party also put up a latrine over the disputed land. It was further stated in the affidavits that party No. 1 was not in possession of the disputed plot, nor was it in possession of any title-deed in respect thereto. As both the parties advanced their rival claims learned Sub-Divisional Magistrate, Ajmer, referred the matter to the City Munsiff, Ajmer, on 3rd November 1962, after formulating the following question:

The case be forwarded to the District Munsiff, Ajmer, to decide the question whether any or which of the parties was in possession of the subject of dispute at the date of the preliminary order.

On receipt of the above reference, learned Munsiff examined the documentary evidence. He also recorded the statements of Inder Chand P.W. 1, Madan Chand P.W. 2, Ratanlal P.W. 3, and Kan Mal P.W. 4 on behalf of party No. 1. Party No. 2 examined Manakchand D.W. 1, Mst. Rameshwari Devi D.W. 2, and Ganga Dhar Joshi D.W. 8. Thereafter the following finding was given by the Civil Court on 2nd August 1965:

From the evidence produced by party No. 1 it has been established that party No. 1, that is the Oswal community was in possession of the disputed property within 2 months next before the date of the preliminary order passed under Section 145, Criminal P.C. but was forcibly and wrongfully dispossessed by party No. 2 Manakchand and Rameshwari Devi thereafter.

3. On receipt of the above finding, learned Sub-Divisional Magistrate, Ajmer, passed order in the following terms on 18th August 1965:

You (S.H.O. Pushkar) are, therefore, here, by ordered that the possession of disputed land be delivered to Sarvashri Inderchand and Madan Lal for Oswal community Pushkar by removing blockings etc. thereon.

Against the above order, a revision petition was filed in the Court of learned Sessions Judge, Ajmer, but it proved fruitless, hence this revision, petition:

learned Counsel representing Manakchand Sunar and Mst. Rameshwari Devi raised the following points:

(1) That the preliminary order drawn up by Sub-Divisional Magistrate, Ajmer, under Section 145, Criminal P.C., was illegal. The dispute pertained to the right of passage and, therefore, the order ought to have been passed under Section 147, and not under Section 145, Criminal P.C.

(2) That the Civil Court went beyond the point referred to it by the Sub-Divisional Magistrate on 3rd November 1962:

(3) That the Sub-Divisional Magistrate (Civil Court?) wrongly held that party No. 1 was in possession of the land within two months next of the date of the preliminary order and that it was forcibly dispossessed by party No. 2.

4. Mr. T.C. Mehta, appearing for party No. 1, raised a preliminary objection to the effect that under Section 146(1-D). Criminal P.C., no appeal lies from any finding of the Civil Court given on a reference under Section 146, Criminal P.C., nor any review or revision of any such finding is allowed and, therefore the revision petition should be dismissed straight way. He has cited Taashuq Hussain v. Stats : AIR1959All568 , wherein it was observe that a finding given by a civil Court under Section 146 Criminal P.C., not being a finding of a Criminal Court cannot be revised under Section 435, Criminal P.C. No appeal or revision is provided against such a finding in the Code of Criminal Procedure. Therefore, even in the absence of Section 146(1.D) the civil Court's finding cannot be challenged by appeal or application in revision, and that the provisions in Section 146(1-D), Criminal P.C., must have been enacted in order to prevent the finding being challenged even indirectly or collaterally. With respect, I do not agree with the ratic(sic) decidendi of the Allahabad case. A similar matter came up before our own High Court in the case of Inder Singh v. State , in which it was observed that the order passed by a Magistrate under Section 146(1B), Criminal P.C., is an order o(sic) inferior criminal Court and should be amenable to the revisional jurisdiction of the Court mentioned in Section 435, Criminal P.C. Sub-section (1-D) only prohibits filing of appeals, revisions am reviews against the finding of the civil Court or the civil tide and not on the criminal side under Sections 485 and 439, Criminal P.C. The purpose o(sic) Section 146(1.D). Criminal P.C., is simply to such an appeal or revision from the finding of a civil Court, but it does not go further than that. B(sic) no means it has any effect on the applicability Section 435, Criminal P.C., from a final order passed under Section 145, Criminal P.C. When an order has been passed under Section 145, Criminal P.C., it cannot be disputed that such an order cannot be revised under Section 435, Criminal P.C. Such a view cannot be said to be inconsistent with the provisions of Section 146(1.D), Criminal P.C., which is confined only to the civil side of the matter and not to the criminal side. That being the position, the contention of Mr. T.C. Mehta that the revision petition, should be dismissed straightway does not appear to be sound and is consequently rejected.

5. I now take up point No. 1 raised on behalf of party No. 2.

6. Section 147, Criminal P.C., relates to disputes pertaining to rights of user of immovable property and empowers the Magistrate to pass temporary order until the rights of the parties are decided by civil Courts. Section 147, does not relate to dispute) concerning immovable property itself for which provision is made is Sections 145 and 146, Criminal P.C. If the right to use land is claimed as an incident of ownership and it is alleged that a dispute has arisen as regards such user, it would be really a dispute relating to the land itself. In the present case the dispute relates to the possession and use of the land since each of the two parties claims possession over and tight to use the property and, therefore, the Magistrate was right in taking action under Section 145, Criminal P.C., and not under Section 147, Criminal P.C. That apart, party No. 2 allowed initiation of proceeding under Section 145, Criminal P.C., to go unchallenged by any filing any revision petition against it and it chose to wait and take a chance of judgment in its favour. That party, therefore, cannot in revision be heard to complain of excess of jurisdiction in the proceedings by the Magistrate under Section 145, Criminal P.C., when the final order has gone against it vide Shibuarayan Das v. Satyadeo Prasad AIR 1943 Pat 44. In the instant case, as I have already pointed out above, the actual dispute between the rival parties pertains to the right of session of land. Party No. 2 contested the case both in the Court of the Sub-Divisional Magistrate as also in the Court of the Munsiff, Ajmer City. It led evidence. It cannot now challenge the preliminary order at this stage on the point of jurisdiction, when the finding of both the Munsiff and the Sub-Divisional Magistrate went against it. The first contention of learned Counsel or the petitioners, therefore, is of no substance.

7. I now switch on to the second contention. The Sub-Divisional Magistrate formulated a reference that the case be forwarded to the District Munsiff, Ajmer, to decide the questions whether any or which of the parties was in possession of he subject of the dispute at the date of the preliminary order. The civil Court after recording oral evidence, led by both the parties, and after perusing the documentary evidence came to the conclusion that the Oswal community was in possession of the disputed property within two months next before the preliminary order dated January 4, 1962, was passed under Section 145, Criminal P.C. It further held that party No, 1 was forcibly and wrongfully dispossessed by party No 2. A careful scrutiny of the above order of learned Munsiff shows that the finding is not inconsistent with the reference made to it by the Sub-Divisional Magistrate. The finding of the civil Court is specific on the point that within two months next before the date of the preliminary order the possession over the property was that of party No. 1 and that it was forcibly dis. dispossessed thereafter. I fail to appreciate the argument of learned Counsel for the petitioners as to how the finding of the civil Court has travelled beyond the question referred to it by Sub-Divisional Magistrate, Ajmer. Thus, the second point raised on behalf of the petitioners is also devoid of merit.

8. I now take up the last point. Party No. 1 has, besides submitting affidavits of Hiralal, Kan Mal, Indra Chand, Madanlal, Ratanlal and Madan Chand, submitted the affidavit of Bal Krishna son of Chunnilal, who was alleged to have sold the land to the Oswal community, on Sawan Sudi 5 Smt. 1990, for a sum of Rs. 99. Bal Krishna has positively stated that the land was Bold by his father to party No. 1 and since then party No. 1 has been in its possession and that party No. 2 forcibly blocked the way by putting up shutters etc. He has also pointed out that the disputed plot was not included in the sale-deed of party No. 2. Party No. 1 also relied on the documentary evidence produced by party No. 2, Ex. A. 1 and Ex. A. 2, dated December 3, 1959, is the agreement to sell, executed by Bal Krishna and Ex. A. 1, dated December 9, 1959 is the registered sale-deed executed by Bal Krishna. In both these documents the southern boundary is shown as a lane and thereafter the property of the Oswal community. If the disputed plot had really been sold to Mst. Rameshwari Devi by Ex. A. 1, the southern boundary ought to have been shown as 'Sthanak' of Oswal community. But that has not been done. Thus, the documentary evidence led by party No. 2 itself goes against it. From the statements of Inder Chand, Madan Chand, Ratan Lal and Kan Mal it is further clear that within two months next of the passing of the preliminary order the possession over the property was that of party No. 1 and that party No. 2 encroached upon this land during this period. This has not been satisfactorily refuted by the testimony of Manka Chand D.W. 1, Mat. Rameshwari Devi D.W. 2 and Ganga Dhar, D.W. 8. In the face of the documentary evidence relied upon by party No. 1, the vague statements of the witnesses of party No. 2 cannot form the basis for arriving at the conclusion that within two months next before the passing of the preliminary order party No. 2 was in possession of the property. From the evidence of party No. 1 it is further manifest that the sale-deed executed by Chunnilal was lost by Indar Chand after showing the same to Vakil Shri Devilal Bhargava and Shri Nagendra Kumar Bhargava. There is also another important piece of evidence on the record Bal Krishna wrote a letter, dated Migsar Sudi 1, Smt. 2011, to the Oswal community. That document is marked Ex. 2. In that letter it is contained that the land had been Bold to party No. 1 on Sawan Sudi 5 Smt. 1990 for Rs. 99/-, and since then party No. 1 had been in its possession. This letter has not been seriously challenged by party No. 2.

9. Thus, from the evidence discussed above, it is plain that party No. 1 was forcibly and wrongfully dispossessed of the property within two months next of the passing of the prelimiminary order and that the plot in dispute was under the possession of party No. 1 a3 has been held by the court of Sob Divisional Magistrate, and the Sessions Judge, Ajmer. Thus the last contention, raised on behalf of party No. 1, stands repelled.

10. Order passed under Section 145, Criminal P.C. is discretionary. Normally the High Court will decline to interfere in revision with such an order made by the Magistrate on inquiry under Section 145, Criminal P.C. where from the evidence, the Magistrate was satisfied as to there being likelihood of breach of the peace. In other words, where the Magistrate given a finding that a particular party is in possession of land on the material date and such finding is based on evidence. High Court will hardly interfere in revision on the ground that it could possibly have arrived to a different conclusion on similar evidence. In a matter like this, the Magistrate does not purport to decide a party's title or right to possession of land but reserves that question to be decided by a civil court. Their Lordships of the Privy Council in Dinomoni Chowdharani v. Broji Mohini (1901) 29 Ind App 24 (PC), tersely laid down the effect of order under Section 145. Criminal P.C. thus:

These orders are merely police orders made to prevent breaches of the peace. They decide no question of title.

In that view of the matter also, I feel reluctant to disturb the concurrent finding of fact arrived at by the aforesaid two Courts.

11. In the result, this revision-petition fails and is dismissed.


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