Chand Singh Chandu vs Nirmal Singh and others

V.S. Aggarwal, J.

On 17.4.1993 the Officerincharge, Police Station Ratia submitted a report under Section 145 Cr.P.C. with respect to the dispute over agricultural land measuring 32 acres, 4 kanals and 13 marlas. The land is situate in the revenue estate of village Nangal. Both the parties were claiming their possession over the crop of Rabi 1993. The SubDivisional Magistrate, Fatehabad recorded the statement of the officerincharge of the police station. A preliminary order was passed. As a consequence thereto the disputed land and the standing crop were attached. Tehsildar of the area was appointed as the Receiver. The Receiver was directed to take possession of the land and the crop. The order as such was carried.

The parties had been called to appear before the Sub Divisional Magistrate so as to facilitate filing of their respective claims, documents and the affidavits. The first party Chand Singh and others made an application for vacation of the attachment order asserting that there are no disputes that are pending. The second party wanted permission to lead evidence over their claim of possession over the land in dispute.

The learned Sub Divisional Magistrate took into consideration the respective averments and concluded that there is no dispute. Accordingly, the order earlier passed was vacated and further held that it will be decided as to whom the crop of Rabi 1993 is to be handed over. It was directed that first party be put in possession of the land.

The second party preferred a revision petition in the court of Session. The learned Additional Sessions Judge accepted the revision petition. It was held that while the learned SubDivisional Magistrate had directed that first party be put in possession but still fixed the case for evidence and continued with the proceedings to decide the question of claim over the crops. It was held that there was no material before the learned Sub Divisional Magistrate to withdraw the order. It was directed that parties should be given an opportunity to produce the evidence and thereafter the question in dispute should be decided.

Aggrieved by the same, the present revision petition has been filed.

The scheme pertaining to disputes as to immovable property under the Code of Criminal Procedure is clear and not subject matter of much controversy. Under subsection (1) of section 145 of the Code of Criminal Procedure, wherever an Executive Magistrate is satisfied from the report of the police officer or upon other information that a dispute is likely to cause a breach of peace concerning any land etc., he may make an order in writing stating the grounds of his being so satisfied and requiring the parties to attend his Court, to put their respective claims with respect to the fact of actual possession. Subsection (4) of Section 145 Cr.P.C. permits the Magistrate without reference to the merits or the claim of any party about right to possess, hear the parties and receive the entire evidence. Subsection (1) of Section 146 Cr.P.C. further permits the said Executive Magistrate to withdrew the attachment at any time, if he is satisfied that there is no longer any likelihood of the breach of peace with regard to the said breach of peace.

The learned Magistrate herein had passed an order which reads:

"I have gone through Kalandra submitted by SHO Police Station Ratia and the statement of SI, SHO Dale Singh P.S. Ratia and I am satisfied on the grounds mentioned in Kalandra statement of SHO Ratia that dispute of possession and harvesting of crop Rabi 1993 exists between Chand Singh and others Ist Party and Nirmal Singh & others 2nd Party regarding the land bearing Khasra Nos.

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"In view of the emergency to safeguard the peace and to avoid conflicts over harvesting of the matured of the Rabi1993 crop between the parties, I hereby order to attach the said land including crop thereon till my decision. Shri Chet Ram Tehsildar is hereby appointed Receiver of said land and crop thereon. He shall immediately take the possession of said land and crop thereon. He shall harvest and collect the crop under his supervision. His remuneration as Receiver is fixed 5% of the total net profit."

It reveals that not only the dispute was pertaining to harvesting of crop but also pertaining to the possession of the land. The learned Sub Divisional Magistrate patently fell into an error in coming to the conclusion that the order was passed pertaining the crop only. When such an order had earlier been passed, in that event, in the absence of any fresh material so as to decide as to which of the party actually was in possession, the attachment order should not have been vacated. No evidence had been led. Consequently, the learned Additional Sessions Judge rightly accepted the revision petition and remitted the case of the Sub Divisional Magistrate. There is no ground, thus, to interfere.

For these reasons, the petition fails and is dismissed. But it is directed that the learned Sub Divisional Magistrate will record his findings within three months of the receipt of this order.