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Ram Avtar and anr. Vs. Dhan Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 280 of 1976
Judge
Reported in1976WLN750
AppellantRam Avtar and anr.
RespondentDhan Raj and ors.
DispositionPetition allowed
Cases ReferredRaja Singh v. Mahendra Singh
Excerpt:
.....of a preliminary order is to give all persons concerned in the dispute a notice that the sub-divisional magistrate is taking action under section 45, cr.pc to prevent to breach of peace and to give them an opportunity to adduce any proof of their respective claims so that the sub-divisional magistrate may be able to decide which of the parties was in possession of the subject of dispute at the date of the preliminary order or within 2 months next before it. this object was fulfilled as soon as the names in this case appeared before him, and adduced evidence, to prove their claims before the sub-divisional magistrate so as to enable him to give a finding on the question which of the parties was in possession of the disputed land at the relevant date. no prejudice was, therefore,..........counsel for the parties. the first question that requires determination in this case is on which date the preliminary order was passed by the sub-divisional magistrate in this case because therefore a dispute between the parties regarding the date of passing of such an order. the order passed by the sub-divisional magistrate on july 18, 1970 at the commencement of these proceedings reads as follows:^^vkt pkyku ih-vkbz }kjk tsj nqk 45 tk-ih- ds rgr [kljk ua0 480] 81] 482] 483] 484] 485] 486] 487] 488] iqjkuk ?kkv ;kf=;ks ds ikl ehy ua0 3 o 5 ds chp vkxjk jksm+ ij gs aftlds dcts ds ckjs es jh /kujkt nqxm+] jhjkevorkj o hkaojth eky viuk viuk dctk crkrs gs vksj eksds ij >xm+k gksdj 'kkfur hkax gksuk iqfyl us crk;k tks lkjh tehu ds dqdz dh tkos o fu.kz; fn;k tkos a iqfyl fjikszv ds vk/kkj.....
Judgment:

K.D. Sharma, J.

1. This is a revision petition filed by Ram Avtar and Om Prakash, hereinafter referred to as party No. 2 against a final order passed by the Sub-Divisional Magistrate, Jaipur, on 23-6-1975, in a proceeding under Section 145, old Criminal Procedure Code.

2. The relevant facts, out of which this revision petition has arisen, are as follows : On 9-6-1970, Dhan Raj Duggar, hereinafter referred to as party No. 1, wrote a letter to the Deputy Inspector General of Police, Rajasthan, Jaipur, that for the last two years some persons, namely, Ram Avtar, Om Prakash and Nathu were disturbing his possession over a portion of land measuring 50 acres and situated at Jaipur Agra road near 4th mile stone from Jaipur. According to Dhan Raj, this land was allotted to him in the year 1946. He alleged to have filed a suit for permanent injunction in the court of the Sub Divisional Officer against the persons disturbing his possession and obtained an Injunction restraining them from causing interference with his peaceful possession. It was further stated in the letter that a dispute likely to cause breach of the peace exists and that assistance of the police was necessary to prevent danger of the breach of peace. The Deputy Inspector General of Police. Jaipur, upon receiving the aforesaid letter directed the Circle Officer, Sanganer, to take immediate necessary action. The police enquired into the court of the Sub-Divisional Magistrate, Jaipur, that there was a serious dispute between Dhan Raj Daggar, party No. 1, and members of parties Nos. 2 and 3 relating to agricultural land comprised on Khasra Nos, 482 to 482 situated near 4th mile stone on Jaipur Agra road and that the dispute was likely to cause breach of the peace. The police requested the S.D.M. to initiate proceedings under Section 145, CrPC in order to prevent breach of the peace. The Sub-Divisional Magistrate was satisfied upon police report that a dispute endangering breach of peace concerning the land exists between the parties. So he made an order to writing on 18-7-1970 and issued notices to all the parties to show cause why further action should not be taken after attaching the land in dispute. It appears from the record that notices were issued to the parties in pursuance of the aforesaid order of the Sub Divisional Magistrate dated 18-7-70. The parties appeared before the Sub-Divisional Magistrate on 30-9-1970 in response to the notices issued to them but the Sub-Divisional Magistrate did not receive an information that a copy of the order had been affixed to some conspicuous place at or near the subject of dispute. So he adjourned the case to 29-10-1970, and passed an order that a copy of the order be affixed to some conspicuous place of the land in dispute. Dhan Raj, party No. 1, however, presented an application before the Sub-Divisional Magistrate before the appointed date, i.e. on 21-10-1970 that an imminent danger of breach of the peace necessitating attachment of the land did exist and that interim attachment of the land should be made. A similar report was filed by the police also. Thereupon, the learned Sub-Divisional Magistrate to keep the case on 5-10-1970 in the presence of all the three parties and heard their arguments an the report of the police and the application of Dhan Raj After bearing arguments, the learned Sub-Divisional Magistrate passed the order of attachment of the disputed land on 7-10-70 and appointed the Tehsildar. Jaipur, as the receiver thereof to take the land into his possession end to manage it during the pendency of the proceedings.

3. Thereafter the Sub-Divisional Magistrate proceeded to make an Inquiry as to which party was in actual possession of the disputed land. In the course of inquiry the parties filed written statements of their claims as regard the fact of actual possession of the subject of dispute and produced documents and adduced evidence by putting in affidavits of such persons as they relied upon in support of their claims. The Sub-Divisional Magistrate considered the entire evidence on the record & was of opinion that he was unable to decide as to which of the parties was in actual possession of the subject of dispute on or two months prior to the date of attachment. He, therefore, drew up a statement of the facts of the case and forwarded the record of the proceedings to the court of the Additional Munsiff, Court No. 1. Jaipur City for decision of the rights and titles of the parties involved in the dispute. The Additional Munsiff. Court No. 1, Jaipur City, concluded the inquiry and transmitted his finding together with the record of the proceeding to the Sub-Devisional Magistrate by whom the reference was made under Sub-section (1) of Section 146 of the old Criminal Procedure Code. The finding of the learned Munsiff dated 31-5-1975 was that Dhan Raj party No. 2 was in prossession of Khasra Nos. 482 to 488 at the date of the attachment and parties Nos. 2 and 3 were not found in possession thereof on the aforesaid date. The Sub-Divisional Magistrate on receipt of the said finding disposed of the proceedings under Section 145 of the old Criminal Procedure Code in conformity with the decision of the civil court and declared the possession of Dhan Raj over the land under controversy at the date of the attachment and forbade all disturbance of such possession until party No. 1 was evicted in, due, course from the land in dispute Aggrieved by this final order passed by the Sub-Divisional Magistrate, Jaipur, party No. 2 has come up in' revision to this Court.

4. The revision-petition was admitted by this Court on 17-12-1975 and notices were issued to parties Nos. 1 and 3 and the State of Rajasthan. Mr. P.C Bhandari; Advocate, appeared on behalf of Dhan Raj Duggar, party No. 1. Bhonriya party No. 3 did not appear in this court despite due service of notice. Dr. S.S. Bhandawat put in his appearance on behalf of the State. I have carefully gone through the record and heard Mr. K.N. Tikku for the petitioner, Mr. P.C. Bhandari for Dhan Raj Duggar and Dr. S.S. Bhandawat for the State. It has been contended on behalf of the petitioner that under Section 145, old CrPC, the Sub-Divisional Magistrate was required to record his finding on the point which party was in possession of the land in dispute at the date of the preliminary order and if one of the parties had been forcibly and wrongfully dispossessed within two months, immediately preceding the preliminary order that party should be treated to fee in possession on the date of the preliminary order even though in fact such party, was not in actual possession. It was further argued by Mr. K.N. Tikku that in the present case the Sub-Divisional Magistrate drew the preliminary order on 18-7-1970. Hence he must have found out which party was in possession on 18-7-1970, or within two months next before the aforesaid date if one of the parties was found to have been forcibly and wrongfully dispossessed within two months of the preliminary order. According to him, the Sub-Divisional Magistrate committed a glaring error of illegality in forwarding the record of the proceedings to the court of the Additional Munsiff Court No. 1, Jaipur to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of attachment of the land, i.e. 7.10.1970. Mr. K.N. Tikku, therefore pleaded that the finding of the civil court in conformity with whiten the final order was based by the Sub-Divisional Magistrate is vitiated, because the Additional Mounsiff Jaipur also committed the same error and decided the question of actual possession of the subject of dispute with reference to the date of attachment instead of giving a finding on the question of possession with, reference to the date of the preliminary order or to any date within two months next before it. In support of his above contention. Mr. K.N. Tikku relied upon an Authority of this Court Kewal Das v. Poose and Ors. 1957 CrLJ 682 and ruling of the Orissa High Court Karamani v. Natha : AIR1966Ori186 .

5. Mr. P.C. Bhandari, learned Counsel for the piety No. 1, on the other hand, argued that the Sub-Divisional Magistrate did not pass a preliminary order Under Section 145(1) of the old Criminal Procedure Code on 18-7-1970 in this case but drew such an order later on 7-10-1970 after hearing all the parties. It was further urged by him that even if it is held that the preliminary order was passed in this case on July 18, 1970, the Sub-Divisional Magistrate committed no such error as may have the effect of depriving him of the jurisdiction to make an inquiry into the possession and to pass a final order in conformity with the decision of the civil court under Section 146(1)(B) of the old Criminal Procedure Code. According to him, the error pointed out by Mr. K.N. Tikku learned Counsel for the petitioner is a procedural error that has not resulted in prejudice to any of the parties and therefore, has no effect of vitiating the findings of the civil court as to possession and the final order passed by the Sub-Divisional Magistrate on its basis. In support of his above proportion Mr. P.C. Bhandari placed reliance on Bhagwat Saran v. State : AIR1967All164 Lalta Ram v. Dalip Singh : AIR1933All264 , and Kapbor Chand v. Soraj Prasad (5).

6. I have carefully gone through all these, authorities cited by, the learned Counsel for the parties. The first question that requires determination in this case is on which date the preliminary order was passed by the Sub-Divisional Magistrate in this case because therefore a dispute between the parties regarding the date of passing of such an order. The order passed by the Sub-Divisional Magistrate on July 18, 1970 at the commencement of these proceedings reads as follows:

^^vkt pkyku ih-vkbZ }kjk tsj nQk 45 tk-ih- ds rgr [kljk ua0 480] 81] 482] 483] 484] 485] 486] 487] 488] iqjkuk ?kkV ;kf=;ks ds ikl ehy ua0 3 o 5 ds chp vkxjk jksM+ ij gS Aftlds dCts ds ckjs es Jh /kujkt nqxM+] Jhjkevorkj o Hkaojth eky viuk viuk dCtk crkrs gS vkSj ekSds ij >xM+k gksdj 'kkfUr Hkax gksuk iqfyl us crk;k tks lkjh tehu ds dqdZ dh tkos o fu.kZ; fn;k tkos A iqfyl fjiksZV ds vk/kkj ij tehu dqdZ djus ls igys eS ;g pkgwxk fd gj rhuks ikVhZ dks lwpuk nh tkos A fd tehu equftd dks D;ks u dqdZ dh tkdj vkxs dh dk;Zokgh dh tkos dkxtkr fnukad 3&88&70 dsk is'k gks A gqDe lquk;k x;k Rkkjh[k 18&2&70

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From a bare perusal of this order. It appears that the Sub-Divisional Magistrate first gave a gist of information which he received from the police. Thereafter he thought it proper to issue notice to the parties to show cause why further proceedings should not be taken after attaching the land in dispute. The notices issued to the parties in pursuance of this order were in the following words:

mijksDr fo'k; es vkidsk tfj;s uksfVl fy[kk tkrk gS fd ,l-,p-vks- tLlh dh rjQ ls tSj nQk 145 tkdks dk bLrkxklk is'k gqvk gS fd vkjkth [kljk ua- 480 dh xzke iqjkuk ?kkV ;k=h;ks es gj nksuks ikVhZ;sk es >xMk Qlkn o 'kkfUr Hkax gksus dk vUns'kk gS A blfy, vkjkth eqruktk dks D;ks u dqdZ fd;k tk; vr% vki dks tfj;s uksfVl bRryk nh tkrh gS fd vkjkth eruktk ds ckjs es tks Hkh lcwr nLrkost u o gy dukestkr is'k djus gh rkjh[k 3&8&70 dks gkftj vnkyr gksdj is'k djs ojuk dk;Zokgh vey es yk;h tkosxh A

18&7&70

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Apart from issuing notices to the parties, the learned Sub-Divisional Magistrate complied with the provisions of Sub-section (3) of Section 145, old Cr.P.C. by causing a copy of the order dated July 18, 1970 to be affixed to some conspicuous place at or near the subject of dispute, as is evident from the endorsement made by the serving officer and the station House Officer on the copy of the duplicate notice on July 26, 70 and July 27. 1970. The duplicate notice is on the record and is marked Ex. 4 in part B, The referred to above contents of the notice leave no doubt in my mind that the order passed by the Sub-Divisional Magistrate on July. 18 1970 was a preliminary order and the fact that it was not pasted in a proper form and was not complete in some respects would not be sufficient to hold that no preliminary order was passed on July 18, 1970 Party No. 1 Dhan Raj Daggar or any other party on whom the notices were served did not raise any objection before the Sub-Divisional Magistrate that the order passed by him was defective on account of not containing the following particulars:

(1) a statement that the Sub-Divisional Magistrate was satisfied as to the existence of a dispute likely to cause a breach of the peace;

(2) direction requiring the parties to the dispute to put in written statements of their claims in respect of the fact of actual possession and also to produce documents and affidavits of their witnesses on whom they relied upon in support of their claims.

On the other hand, the parties appeared before the Sub Divisional Magistrate in response to the notices served upon them and filed written statements of their respective possession of the subject of dispute and adduced evidence by putting in affidavits of such witnesses as they relied upon in support of their claims. The object of a preliminary order is to give all persons concerned in the dispute notice that the Sub-Divisional Magistrate is taking action under Section 145, CrPC to prevent a breach of peace and to give them an opportunity to adduce any proof of their respective claim so that the Sub Divisional Magistrate may be able to decide which of the parties was in possession of the subject of dispute at the date of the preliminary order or within two months next before it. This object was fulfilled as soon as the parties in this case appeared before him, and adduced evidence to prove their claims before the Sub Divisional Magistrate so as to enable him to give a finding on the question which of the parties was in possession of the disputed land at the relevant date. No prejudice was, therefore, caused to any party by omission to mention some of the particulars in the preliminary order dated 18-7-1970.

7. Mr. P.C. Bhandari vehemently argued before me that the preliminary order was drawn by the Sub-Divisional Magistrate subsequently on 7-10-1970 the above contention is devoid of substance, because on 7-10-1970, the Sub-Divisional Magistrate passed a order for interim attachment of the land in dispute & for appointment of the Tehsildar, Jaipur, as a receiver thereof. In this order dated 7-10-1970, the Sub Divisional Magistrate has merely mentioned that there existed an imminent danger, of breach of the peace and shat it was necessary to attach the subject of dispute pending his decision under Section 145, CrPC, Had this order dated 7-10-1970 been a preliminary order, its copy would have been published by being affixed to some conspicuous place at or near the subject of dispute and the parties would have been required to adduce evidence in proof of their respective claims as regards the fact of actual possession of the subject of dispute. Consequently, I have no hesitation in holding that the order passed by the Sub Divisional Magistrate on 18-7-1970 was a preliminary order.

8. The next question that arises for determination is whether the final cider passed by the Sub Divisional Magistrate in conformity with the decision of the civil court is vitiated on the ground that the possession of party No. 1 was not determined as on the date of the preliminary order but was determined as on the date of the attachment of the land, i.e. 7-10-1970. In my, opinion, it was the duty of the Sub-Divisional Magistrate at first to find out on materials on the record as to which party was in actual possession of the disputed land on the date of the preliminary order. If however a party found in possession of the property as the date of the preliminary order had forcibly and wrong fully dispossessed the other party within two months next before the date of the preliminary order, the Sub-Divisional Magistrate could treat the party so dispossessed as if he bad been in possession at the date of the preliminary order. If for some reason or other, the Sub Divisional Magistrate was of opinion that none of the parties was in actual possession of the land in dispute at the relevant time if he was unable to decide as to which of them was then in such possession of the subject of dispute, be could make a reference to the civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the disputed land at the date of the preliminary order or within two months next before it as explained in Sub-section (4) of Section 145 of the old Criminal Procedure Code. The wordings and forward the record of the proceedings to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section 4 of Section 145, Cr.PC used in Sub-section (1) of Section 146, CrPC clearly indicated that the matter could be referred to a civil court for decision on the question of possession with reference to a specific date or point of time, i.e. the date of the preliminary order or within 2 months immediately preceding it. A similar view was taken by this Court in Kewal Das v. Phusa and Ors. (supra), wherein hon'ble Modi Judge made the following observations on this point in para 11:

Secondly, the section aims at determining possession not in an unlimited scope but with reference to a specific point of time and that point of time is the date when the Magistrate on being satisfied that the basic conditions of Section 145 are fulfilled assumes jurisdiction to decide the dispute presented to him and passes a preliminary order and embarks on an inquiry. He was required according to the plain language of the entire section to determine whether any and which of the parties was at the relevant date mentioned above in possession of the property in dispute, and where he is able to determine, be must declare such party in possession and forbid the rival party from interfering with it until the party entitled to possession is evicted therefrom in due course of law.

9. The learned Judge further observed:

If I may say so, with all respect, the new amendment clearly supports the position that the criminal court is concerned to determine possession with reference to the limitations clearly kid down in the section. Primarily the possession must be determined as on the date of the preliminary order and this brings me on to the second proviso of the 4 Sub-section of Section 145.

Mr. P.C. Bhandari could not cite any authority or law to show that in any proceeding under Section 145, Cr.PC possession can be determined as on the date other than the date of the preliminary order or within two months next before it. As stated earlier, the civil court in this case gave a finding that Dhan Raj Duggar party No. 1 was in possession of the land in dispute on the date of attachment i.e. on 7-10-1970. The civil court did not determine the possession as on the date of the preliminary order or within two months immediately preceding it. The error was committed because the Sub Divisional Magistrate in his reference dated 29-4-1972 requested the civil court to determine possession with reference to the date of attachment. This error has undoubtedly resulted in prejudice to the parties and has vitiated the entire proceedings because the enquiry as to possession was conducted with reference to a wrong specific point of time, i.e. the date of attachment and the possession was not determined as on the date of the preliminary order.

10. Lastly, it has been contended that the final order passed by the learned Sub Divisional Magistrate should Dot be lightly interfered with in revision especially when it has been made in conformity with the decision of the civil court. The above contention has no force. It has been held by this Court in Durjan Singh v. The State that a revision-petition under Sections 435 and 439, Cr.PC may be filed in the High Court against the order of the Magistrate passed under Sub-section (1)(b) of Section 146, Cr.PC finally disposing of the petition under Section 145, CrPC after the receipt of the findings of the civil court and that the High Court can set aside an erroneous order and pass such orders as it thinks fit. I am in respectful agreement with the referred to above decision of the Court because once the finding of the civil court was incorporated by the Sub Divisional Magistrate in his order under Section 146(1)(b), the entire proceedings including the finding of the civil court may be revised and the scope of the powers of revision in such cases car not be restricted to only finding out whether the criminal court has or has not passed the final order in conformity with the finding of the civil court or has or has not committed any other illegality. Reference in this connection may be made to Raja Singh v. Mahendra Singh : AIR1963Pat243 , wherein it was held that the finding of the civil court may be disturbed or interfered with if the civil court may be disturbed or interfered with if the civil court while giving it has ignored the well recognised or settled principles of law Consequently, I am of the view that the order under revision passed by the Sub Divisional Magistrate, Jaipur, is illegal and the finding of the civil court in conformity of which it was passed are in flagrant and gross violence of the well-recognised principles of law and are liable to be set aside.

11. The revision petition is therefore, accepted, the impugned order passed by the Sub-Divisional Magistrate, Jaipur, on June 20, 1975 and the finding of the civil court in conformity with which it was passed are set aside and the case is sent back to the learned Sub Divisional Magistrate, Jaipur, for fresh decision in accordance with law and in the light of the observations made above. The preliminary order passed by the Sub-Divisional Magistrate, Jaipur on July 18, 1970 stands. The land shall remain under attachment till final decision of the case by the Sub-Divisional Magistrate.


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