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Ghanshyam Vs. Smt. Parvati - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 14 / 975
Judge
Reported in1977WLN598
AppellantGhanshyam
RespondentSmt. Parvati
Cases Referred(Sita Ram v. Ghasi Ram) and
Excerpt:
.....the magistrate has arrived at a decision that he is unable to decide as to which party was in possession, the proceedings will come to an end and there will be no scope for taking further proceedings to as to pass order under section 145(6) cr. p.c. and so for all practical purposes proceeding under section 145 will come to an end and they will no longer survive so far as to taking further steps for a final decision i am, therefore, of the opinion that the impugned order is a final order and the learned sessions judge, therefore, failed to exercise his jurisdiction vested in him by law.;i hold that the revision lies against the impugned order before the learned sessions judge, as the impugned order is not in interlocutory one. the learned sessions judge, jaipur district, jaipur,..........is an interlocutory order or final equally applies for determining whether an order in a criminal proceedings is final vide s. kuppusami rao v. the king. (supra).9. in corpus juris secundum vol. 24 it was observed under section 164(3) at page 241 as under: while the question as to what constituted a final judgment, is a subject of much discussion for the purpose of an appeal it has been said that judgment is final whether it terminates the litigation' between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.in volume ii of the corpus juris secundum at page 85 it is mentioned that:interlocutory: not final, provisional, temporary. the term is opposed into definitive and has been contrasted with final.in jethanand and.....
Judgment:

M.L. Joshi, J.

1. The lands covered by Khasra No. 191, 590, 591, 593, 594, 596, 597, 598, 599, 600, 602 & 603 situate in village Bhamod, Tehsil Bairath, were in the Khatedari of deceased Shiv Prasad under Khata No. 149. Deceased Shiv Prasad is said to be grand father of deceased Jagdish, the husband of Smt. Parvati. Smt. Parvati made an application under Section 146 Cr. P.C. in the court of Sub Divisional Magistrate, Kotputli, inter alia alleging that deceased Shiv Prasad and deceased Jagdish husband of Smt. Parvati resided together and both were cultivating the afore said lards. It was alleged in the application that Shiv Prasad being an old man, the lands in question were being looked after by the deceased husband of Smt. Parvati. It has been further alleged in the application that even after the death of deceased Jagdish Prasad deceased Shiv Prasad used to reside with Smt. Parvati and after the death of deceased Shiv Prasad the aforesaid lands in question have been in continuous possession of Smt. Parvati and have been cultivated by her. It is further averred in the application that after the death of Shiv Prasad on 23rd Sept., 1970, the non-applicants Ghanshyam and Krishan Kumar, who are father and son harboured an ill intention to forcibly take possession of the aforesaid lands from Smt. Parvati asserting that Krishna Kumar was adopted by deceased Shiv Prasad in his life time and by virtue of adoption the non-applicants were in possession of the lands in question. It has been alleged under this pretext the non-applicants are bent upon to take forcible possession of the aforesaid lands in question from the applicant Smt. Parvati although her crops are standing. It is further averred in the application that when the applicant Smt. Parvati went on her lands to look after her crops the non-applicants quarrelled with her and threatened that the will be finished off. She has further stated in her application that the non-applicants are wrongfully preventing her from harvesting her crop and thus there is every likelihood of breach of peace on the part of the non-applicants. On these allegations Smt. Parvati prayed that her possession on the lands in question be declared and the non applicants Ghanshyam and his son Krishnakumar be bound down to the effect that they would not interfere with the possession of Smt. Parvati. This application was sent by the Sub-divisional Magistrate to the Station House Officer, Shahpura, for report. The Assistant Sub-Inspector had reported that there is a serious dispute relating to the lands in question between the parties Upon the perusal of the report the Sub divisional Magistrate, Kotputli drew a preliminary order under Section 145(1) of the Cr. P.C., and called upon the parties concerned to attend his court in person or through pleader on 12th of April, 1974, to put in written statements of their respective claims, as respects the facts of actual possession of the disputed lands. In compliance of this preliminary order notices were sent to the parties and both the sides submitted their written statements along with affidavits and documents in their possession.

2. The learned Sub-divisional Magistrate perused the various documents submitted by the parties and alter hearing the arguments and perusing the record, recorded a finding that from the evidence produced on the record neither of the parties have been able to prove their possession to the satisfaction of the court Consequently, he attached the aforesaid lands and appointed Naib Tehsildar, Viratnagar, as the receiver of the aforesaid lands & directed him to reach the spot at once and take the possession of the lands and make proper arrangements for the cultivation of the lands in question.

3 Being aggrieved by the aforesaid order of attachment of the property and appointment of receiver on these lands non-applicants Ghanshyam and Krishnakumar moved the learned Sessions Judge, Jaipur District, in revision for quashing the order of the attachment and the order of appointment of receiver. The revision came to be dismissed by the learned Sessions Judge vide order dated 30th January, 1975, holding that the impugned order is merely an interlocutory order and revision application is not maintainable against interlocutory order in view of Section 397(2) of the Cr. P.C.

4. The petitioner Ghanshyam and Krishnakumar being not satisfied with the order of the learned Sessions Judge moved this court in the first instance under Article 226 and 227 and under Section 482 Cr. P.C. and prayed that the impugned orders dated 26th January. 1975, of the learned Sub-Divisional Magistrate Kotputli and the order dated 30th January, 1975, of the learned Sessions Judge Jaipur be quashed and set aside. Later on the application was moved on behalf of the non-applicants Ghanshyam and Krishnakumar that his petition purporting to be under Article 226 and 227 of the Constitution of India and 482 of the Cr. P.C. be treated as a petition under Section 482 Cr. P.C. only. The petition is accordingly being treated under Section 482 Cr. P.C. only. The petition is accordingly treated under Section 482 Cr. P.C. The petition has been seriously opposed on behalf of Smt. Parvati widow of jagdish Prasad.

5. Mr. G.M.Lodha on behalf of the petitioners has contended that the order passed under Section 146 Cr. P.C. by the learned Sub-divisional Magistrate, Kotputli is not an interlocutory order and, therefore, the Sessions Judge, Jaipur District, Jaipur, was competent to consider the revision petition on merits and having failed to consider the revision petition he has failed to exercise the jurisdiction vested in him by law. In this connection it has been submitted by the learned Counsel that the proceedings under Section 145 Cr. P.C. were commenced and a preliminary order was passed on 2nd of April, 1974, and notices were given to the parties concerned who were directed to produce statements of claims as well as documents and evidence, if any, with their written statements. The parties concerned produced the documents and the case was closed so far as the production of documents and affidavits was concerned. It is further pointed out by Mr. Lodha that the arguments were heard by the Sub-divisional Magistrate, who after hearing the same came to the conclusion that the lands in dispute were not proved to be in possession of any one and so the order of the Sub-divisional Magistrate under Section 146 Cr. P.C. parttakes the nature of final order and cannot be termed as a interlocutory order & therefore, the revision filed by the petitioner was maintainable.

6. On the other hand, Mr. P.N. Datt, on behalf of the respondent Smt. Parvati, has strenuously urged before me that the impugned order has not led to the end of litigation and is merely intermediatory step & therefore, the order is nothing but an interlocutory one & therefore the learned Sessions Judge was right in rejecting the revision application against the order under Section 146 Cr. P.C. as not maintainable, in view of Section 397(2) of Cr. PC.

7. The principal controversy centres round the point as to whether the impugned order of the Sub-divisional Magistrate under Section 146 Cr. P.C. is a final order or an interlocutory one. In this connection it will be useful to refer to some important cases which will be of great assistance for this purpose. In Ramchand Manjimal v. Goverdhandass Vishindas Ratanchand AIR 1920 PC 86, the Judicial Committee observed that the expression 'final order' within the meaning of Section 109(a) of the Code Civil Procedure, 1908, is an order which finally disposes of the rights of the parties in relation to the whole suit. In Abdul Rehman v. D.K.Cassim and Sons AIR 1933 PC 58, the Judicial Committee observed that expression 'final order' within the meaning of Section 102A of the Code of Civil Procedure is an order which finally disposes of the rights of the parties in relation to the whole suit In S. Kuppusami Rao vs The King. AIR 1949 FC 1, the Federal Court held that the expression 'final order' occurring in Section 205(1) of the Government of India Act, 1935, means an order which finally determines the points in dispute and brings his case to an end. Again in Mohammed Amin Brothers Ltd., v. Dominion of India. AIR 1950 FC 77 Mukherjee J., observed.

The expression 'final order' has been used in contradistinction to what is known as 'interlocutory order' xxxxxxxxxxx If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order.

In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay : AIR1958SC253 , a vital issue was decided by the trial court against the appellant and the order was confirmed in appeal by the High Court of Bombay. Against the order deciding the issue, an appeal was preferred to Supreme Court with certificate granted by the High Court under Articles 132 & 133 of the Constitution & it was held that the appeal was not maintainable since the decision on the issue did not finally dispose of the dispute between the parties.

8. In Mohanlal v. State of Gujarat AIR 1958 SC 733, it has been laid down that no single general test for finality of a judgment or an order can be laid down, the reason being that a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. 'Their lordships further observed.

Generally speaking a judgment or order which determines a principal matter in question is termed final. It may be final although it directs inquiry or is Made on an interlocutory application 'or reserves liberty to apply. In this very case it has been laid down that a test which applies in a civil case to determine as to whether an order is an interlocutory order or final equally applies for determining whether an Order in a criminal proceedings is final vide S. Kuppusami Rao V. The King. (supra).

9. In Corpus Juris Secundum Vol. 24 it was observed under Section 164(3) at page 241 as under:

While the question as to what constituted a final judgment, is a subject of much discussion for the purpose of an appeal it has been said that judgment is final whether it terminates the litigation' between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.

In volume II of the Corpus Juris Secundum at page 85 it is mentioned that:

Interlocutory: not final, provisional, temporary. The term is opposed into definitive and has been contrasted with final.

In Jethanand and sons v. State of Uttar Pradesh 1961 SC 794, the Supreme Court has observed:

An order is final if it lead to a final decision relating to the rights of the parties in dispute in a civil proceedings If after the order the civil proceedings still remain to be tried and the rights in dispute between the parties have to be determined, the order is not a final or within the meaning of Article 133.

10. In Central Bank of India V. Gokulchand : [1967]1SCR310 , their Lordships of the Supreme Court have observed that interlocutory orders are merely procedural and do not affect the rights or liabilities of the parties pending proceedings and that they are merely steps taken towards final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings.

11. In Tarapore and Co. K. Madras v. V/O Tractors Exports Moscow and Anr. : [1969]2SCR699 , their Lordships after survey of cases of Privy Council, Federal Court, and Calcutta High Court observed as follows:

There is, therefore, abundant authority in support of the view that art order is final Within the meaning of Article 133 of the Constitution, under section 109 Code of Civil Procedure or Section 205 of the Govt, of India Act, 1935, if it amounts to final decision on the rights of the parties in dispute in the suit or proceeding, if after the order is made the suit or proceeding still remains to be tried, and the rights in disputes have to be determined, the order is interlocutory.

In this case it was contended before the Supreme Court that the law laid down in cases decided by the Privy Council, Federal Court has been superseded in Mohan Lal Thakkar's case: : 1968CriLJ876 . In Mohan Lal Thakkar's case (supra after an inquiry under Section 476 Code of Criminal Procedure, 1898, a Magistrate ordered that a complaint be filed against a person in respect of offences under Sections 205. 467 and 468 read with Section 114 IP Code. In appeal the Additional Sessions Judge held that the complaint was competent only in respect of the offences under Section 205 read with Section 114. The High Court dismissed a revision application against the order of the court of sessions. In an appeal under a certificate granted by the High Court held that the order passed was a final order within the meaning of Article 134(1)(c) of the Constitution since the controversy between the parties whether the complaint in respect of the offences under Section 467 and 468 read with Section 114 I.P.C. was disposed of by the order of dismissal & the proceeding regarding that question was finally decided. It was further observed by their Lordships that the finality of the order was not to be seen by co-relating it with the controversy in the complaint namely whether the appellant had committed the offence charged against him therein. The Supreme Court repelling the contention raised on behalf of the counsel for the appellant, held that there is nothing in the decision of Mohan Lal Thakkar's case. (supra) that the Supreme Court had departed from the principle of earlier decision or has suggested a different test for determining the finality of orders as the order of the High Court in that case would finally dispose of the proceedings of the Magistrate court relating to the exigency to institute criminal proceedings against the appellant. It was further observed that the proceedings for filing a complaint under Section 476 Cr. P.C. was a self contained proceedings and was finally disposed of by the order directing the filing of complaint under Section 205 read with Section 114 I.P.C. The court further observed that the proceedings instituted on the complaint was not part of an order incident of to the proceedings for the inquiry whether the complaint should be filed. Their Lordships further observed that in Mohan Lal Thakkar's case (supra) the test laid down in S. Kuppusami Rao's case (supra) were approved. To the same effect is the view taken by the Supreme Court in Prahash Chand v. Hindustan Steel : [1971]2SCR405 .

12. In Dhola v. State 1975 Cr. L.J. 1274, Chief Justice Beri, as he then was, after surveying the various authorities observed that an interlocutory order is one which is passed at some intermediate stage of proceedings generally to reach the final determination of the rights between the parties.

13. In the light of the above decisions it is now to be seen whether the impugned order of the Sub-divisional Magistrate, Kotputli, dated 25th of January, 1974, is a final order or an interlocutory one. In this connection it will be useful to examine the scope of Sections 145 and 146 Cr. P.C.

14. Section 146 is really a part of Section 145 under which a Magistrate is to initiate proceedings in respect of dispute relating to lands where there is a dispute and there is likelihood of breach of peace. Section, 145 confers powers on an Executive Magistrate to intervene and pass a preliminary order where there is a dispute between the parties regarding the possession of the land which is likely to result in breach of peace. To prevent the breach of peace the speedy remedy as provided, is drawing up of a preliminary order under Sub-section (1) of Section 145 against the parties concerned in the dispute calling upon them to appear on a specified date and time and put in their written statement in support of their claims of actual possession. Sub Section (4) of Section 145 Cr. P.C. provides that the Executive Magistrate after reading the written statements so put in, and hearing the parties and their evidence shall pass an order under Sub-section (6) of Section 145 Cr. P.C. declaring and maintaining possession, of that party, who, in his decision, was in actual possession or who was dispossessed from such possession within two months next prior to the date of the drawing of the preliminary order and forbidding interference by the party against them, decision is given not to evict that party without due recourse of law. However if the Magistrate, after passing the preliminary order at any time considers the case one of emergency, or if upon enquiry he decided that none of the parties was in possession or if he is unable to decide who was in actual possession, he may, under Section 146 attach the property until a competent court has determined the rights of the parties with regard to the persons entitled to possession. It will thus appear that Section 146 contemplates attachment of immovable property by the Executive Magistrate under three contingencies viz., (1) if the case is one of emergency, (2) if upon inquiry the Magistrate comes to a decision that none of the parties was then in possession, and (3) if the Magistrate is unable to decide who was in actual possession. The question, therefore, remains to be seen is whether when the Magistrate comes to the conclusion that he is unable to find out who is in actual possession of the land in dispute, do the proceedings come to an end and such order made is a final order. When the Magistrate after the inquiry is in doubt as to which party was in possession the criminal proceedings before the Magistrate would of course come to a close and the Magistrate's duty would end after the steps for attachment he takes to immediately prevent the breach of peace In such an exigency the only remedy with the party will be to get their rights decided by the competent Court. Whether the same can be said in a case where the attachment order is passed ex parte without making any inquiry is a matter which is not free from doubts, and I will not like to venture to express a firm opinion on that point nor that point is exactly before me. I may, however, observe that Section 146 is not an independent section but supplementary to Section 145 and in my humble opinion it cannot over-ride the provision of Section 145. Now in such a situation can it be said that the proceedings came to an end and the order of attachment partakes the character of a final order. This court however, in such a case also has taken the view that such order even is a final order vide Umrao v. Shivnarain and Ors. 1975 WLN 487, Malam Singh v. State of Rajasthan 1976 WLN 517 and Mansukaram v. State of Rajasthan and Ganesh Ram 1974 RLW 443. In these cases the learned Judges of this Court have taken the view that even interim order of attachment passed ex parte is a final order. I need not express any opinion on this view as such is not the case before me and the matter involved in these cases has also been referred to Division Bench in Criminal Revision No. 298 of 1975 (Sita Ram v. Ghasi Ram) and I restrict my decision to a case where the Magistrate has arrived at a decision that he is unable to decide as to which party was in possession. As stated earlier in such a case of course the proceedings will come to an end and there will be no scope for taking further proceedings so as to pass order under Section 145(6) Cr. P.C. and so for all practical purposes proceeding under Section 145 will come to an end and they will no longer survive so far as to taking further steps for a final decision. I am, therefore, of the opinion that the impugned order is a final order and the learned Sessions Judge was obviously wrong to hold that it was an interlocutory one. The learned Sessions Judge, therefore, failed to exercise his jurisdiction vested in him by law.

15. In view of the foregoing discussion I hold that the revision lies against the impugned order before the learned Sessions Judge, as the impugned order is not an interlocutory one. The learned Sessions Judge, Jaipur, District, Jaipur, failed to exercise his jurisdiction vested in him by law. I, therefore, in exercise of my powers under Section 482 Cr. P.C. quash the impugned order of the learned Sessions Judge & direct him to decide the revision according to law. I may however, observe that during the pendency of the attachment the receiver shall remain in possession of the lands in dispute & he will auction them for cultivation so that the lands may not remain unutilised Let a copy of this judgment he sent the Sub-Divisional Magistrate, Kotputli.


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