Bhag Singh and others vs Bhaika Bhag Cooperative Society Limited Dialpura

S.S. Sidhu, J.—The facts of the case are as under:- Bhag Singh, Sher Singh, Gurdev Singh, etc party No. 2 has directed this revision petition against the order dated 14th February, 1972 of Shri Y.S. Ratra, then Sub Divisional Magistrate. Rampura Phul in proceedings u/s 145 Cr.P.C. helping the disputed land to be in actual possession of party No. 1.

In brief, the facts relevant for this revision petition are that Bhaika Bagh Cooperative Society Ltd., Dialpura, party No. 1 filed an application on 7th October, (sic) u/s 145 Cr.P.C against party No. 2 Phul Singh etc., alleging that the society had taken possession of the land measuring 336 Kanals 8 marlas as on 18th April 1968 in execution of a warrant of possession of Sub Judge, Phul, and thereafter cultivated chart Guwara and sugarcane crop therein. On 6th October, 1968 Amar Singh and Gopal Singh servants of the said Society went to Harvest the gowra crop with party No 2 Bhag Singh, etc., obstructed them from so doing while armed with lathis and this occurrence was witnessed by Baz Singh s/o Kehar Singh of the said village. It was also contended that Bhag Singh etc party No. 2 were openly threatening the Society to kill its servant if they attempted to remove any crop from the disputed land A request was made to attach the standing crop. The Executive Magistrate passed the preliminary order on 7th October, 196b requiring the parties to appear before him on 9th October. 1968 when the property was attached The parties put in their written statements in support of their claims en 25th October, 1968 Party No. 2 etc contended that the actual possession of the land remained with them and they had purchased the same from Jatinder Kaur, daughter of Balbir Singh through registered sale deed dated 29th November, 1968. It was also contended that one Dalip Singh and Bachan Singh who also cultivated some portion of the land were not made party Ultimately, on 13th November 1968 the Executive Magistrate vacated the attachment and dropped the proceedings u/s 145 Cr.P.C. Thereafter the Society went in revision before the Additional Sessions Judge, Bagnala who declined the tame, and thereafter revision petition was filed in the Hon''ble High Court which was accepted on 7th October, 1970 and the case was remanded for further proceedings.

The learned Sub Divisional Magistrate relied upon the warrant of possession dated 22nd March, 1968 of Sub Judge, Phul Ex.P.1/A and upon proceedings Ex.P/1/B of the delivery of possession on 18th April, 1968 betides the affidavits of Shri Maharaj Krishan former Sub Inspector Incharge of Police Station, Dialpura Ex.P.1/C and copies of the report in the daily diary Roznamcha Ex.P.1/D. P.1/E regarding the delivery of possession and after persuing the affidavits of the concerned parties arrived at the conclusion that the actual possession of the disputed land was delivered to the Society on 13th April, 1968 and this tact was supported by the copy of the Khasra Girdawari Ex.P.(sic). He discarded the previous entries in the case of the delivery of possession by warrant and ordered that the actual possession of the land be restored to the society.

The learned counsel for the petitioner assailed the findings of the Magistrate contending that the Executive Magistrate did not consider the evidence of party No. 2 viz. sale deed Ex.P.5 whereby land was purchased by them from Smt, Jatinder Kaur and application Ex.P 6 of correction of Khasra Girdwari for Kharif 1968-69 filed by the Society alleging that Sher Singh, Bhag Singh, etc. had illegally taken possession of the land besides contending that the delivery of possession through warrant was a fictitious transaction without going at the spot.

The learned counsel for the respondent on the other hand contended that under proceedings of 145 Cr.P.C. the Executive Magistrate cannot go into the title of the parties but had simply to arrive at the conclusion about the factum of actual possession of the disputed land and restore the same to the party found in actual possession of the land at the time of institution of those proceedings or dispossessed within two months of the filing of the said proceedings and vehemently contended that the order of delivery of possession through a warrant of civil court superseded the claim of the parties regarding possession.

That law is well settled that an Executive Magistrate cannot go into the question of title in proceedings u/s 145 Cr.P.C. but had to confine himself to the factum of actual possession. The warrant for possession copy whereof is Ex.P.1/A and the report of the Qnugo Ex.P.B./1 clearly reveals that the actual possession of the land was delivered to the Society "Gheria Bazaris Thada Andazi" and the word figuring therein Kabza Kamal Dilwaya Gaya after assessing the compensation of the standing crop on a portion of this land. Out of the total land measuring 366 Kanals 8 marlas, land measuring 204 Kanals 8 Marlas was in possession of Bhag Singh second party at the time of delivery of possession. It is noteworthy that this report was attested by Sher Singh a member of party No. 2 present petitioner besides Harnam Singh Panch, Gurnam Singh Chaukidar, Dalip Singh Panch and S.I. Maharaj Krishan who vide their respective affidavits Ex.P.1/H, K, J and L had supported the said delivery of possession.

However, the delivery of possession in pursuance of the warrant of the civil Court would be of no help to establish the possession of the Cooperative Society since the society admitted in application Ex. R.6 filed for the correction of the Khasra Girdawari on 24th October, (sic).

(sic).

In view of discussion above. I have no option but to recommend this revision petition to the Hon''ble High Court for setting aside the (sic) order and for declaring that (sic) Singh etc. were in actual possession of the land.

ORDER

I have heard the learned counsel for the parties and have gone through the documents produced in this case by the either party, discussion about which has been made by the learned Additional Sessions Judge Bhatinda Shri Jai Singh (sic) in his reference order dated 8th May, 1974.

The only point worth discussion which has been raised in this case before me by the learned counsel for the respondent is that since the original application, of which Exhibit R. 6 is the certified copy placed on the record of this case, was not produced and the respondent was not confronted with the admission made by him in that application, Exhibit R. 6 could not be taken into consideration by the learned Additional Sessions Judge, Bhatinda, and made as basis for giving, finding that the petitioners were in actual possession of the disputed land in Kharif 1964 and Rabi 1969. I find no merit in this argument of the learned counsel. Admittedly, Exhibit P. 6 is the certified copy of the document, produced by the respondent in file No. 3 RNT instituted on 11th May l970/20th October 1970 in the Court of Additional Collector II Grade, Phul. That document in fact is the application dated 24th October, 1969, presented by the respondent before the aforesaid Collector for getting the entries in Khasra Girdawaris relating to Kharif 1968, Rabi 1969 and Kharif 1969 in respect of the land in dispute corrected. In that application, a prayer was made by the respondent that since Bhag Singh, Sher Singh and Gurdev Singh sons of Kartar Singh, residents of village Bhagta Bhai were in forcible possession of the land in dispute from Kharif 1968 to Kharif 1969, a correction in the Khasra Girdawari showing that they were in forcible possession of that land during that period be made. In other words, that application contained admission of the respondent that the petitioner were in possession of the land in dispute in Kharif 1968. The Court can take judicial notice that sowing of Kharif starts in middle of June every year. So, the petitioners in the present case must have sown Kharif crop of 1968 in the land in dispute in the middle of June, 1968. The preliminary order u/s 145 (1) Criminal Procedure Code was passed by the Court of Sub-Divisional Magistrate, Rampura Phul, on 7th October, 1969. It therefore, is abundantly clear that on that date and also within two months prior to that date, the petitioners namely, Bhag Singh, Sher Singh and Gurder Singh, sons of Kartar Singh, were in actual possession of the land in dispute. Thus, the Court of Additional Sessions Judge, Bhatinda rightly so held in its order of reference. Section 65(1) of the Indian Evidence Act reads as under:--

Cases in which secondary evidence relating to documents may be given--Secondary evidence may be given of the existence, condition or contents of a document in the following cases :--

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(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence.

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In view of the aforesaid provision, Exhibit R. 6, which is the certified copy of the application of the respondent containing his admission is admissible in evidence for proving that admission. I would, therefore, overrule the objection raised by the counsel for the respondent that only the original of Exhibit R. 6 and not Exhibit R. 6 itself, could be looked into by the Court below for showing that the respondent had made admission with regard to the factum of actual possession of the petitioners over the land in dispute on 7th October, 1968, the date of passing the preliminary order by the Court of Sub Divisional Magistrate, Rampura Phul, and also within two months prior to that date.

Another objection raised by the counsel for the respondent that the admission of the respondent contained in Exhibit R. 6 could be used against the respondent only after the same had been put to him too is not tenable. It may be pointed out that Exhibit R. 6 was produced in evidence in proceedings u/s 145, Code of Criminal Procedure, which are of summary nature. In such proceedings, a certified copy of the document containing admission of a party is admissible in evidence against that party for proving his said admission even without confronting that party with his admission contained in that document. This view finds support from Mangal a Majhi and others v. Smt. Salge Bewa and another, 1914 Cri. L.J. 215. in which it has been held as under with regard to the statement of a party containing his admission which had been filed in Court by the other party in proceedings u/s 145, Code of Criminal Procedure :--

...in a proceedings u/s 145 Criminal Procedure Code the documents need not be marked and exhibited The learned Magistrate therefore, acted illegally in not properly appreciating the significance of this document (statement referred to above) and in completely discarding it from consideration.

In view of this matter, the Court below rightly attached due weight to the admission of the respondent contained in his application, copy of which Exhibit R. 6 is placed on the record of this case. Exhibit R. 6 coupled with the affidavits filed on behalf of the petitioners, fully falsifies the contents of the affidavits produced on behalf of the respondent with regard to the factum of actual possession of the suit land on 7th October, 1978, the date on which the preliminary order was passed by the Court of Sub-Divisional Magistrate, Rampura Phul, u/s 145(1), Code of Criminal Procedure, and also within two months prior to that date. Thus, the recommendation nude by the Court below is perfectly correct and in order.

For the reasons given above, I accept the reference mode by the Court of Additional Sessions Judge, Bhatinda, vide its order dated 8th May, 1974, and setting aside the impugned order dated 14th February, 1972, of the Court of Sub Divisional Magistrate, Rampura Phul hold that Bhag Singh and others petitioners, ware in actual possession of the land in dispute on 7th October, 1968, and also within two months prior to that date and that they are entitled to retain their possession over that land till they are evicted therefrom in due course of law.