Jagan Nath & Ors.; Krishan Kumar vs Gokal Chand

The dispute between the parties pertains to the land meassuring 11 kanals and 15 marlas covered by survey Nos. 254/191/6, 255/191/6,

257/191/6, 257/191/6, 258/7 and 261/7 situate in village Patyeli tehsil Jammu. Respondent Gokal Chand filed two petitions under Sec. 145 Cr. P.

C. against the petitioners herein before the Addl. District Magistrate, Jammu, who, vide his order dated 7.11.1990 held that nonapplicant No. 3

before him was not in possession of the land in dispute two months prior to the passing of the preliminary order and had tried to take possession of

the land without due process of law. It was further held that the applicant was in possession of the land in dispute two months prior to the passing

of the preliminary order and was entitled to retain possession unless dispossessed in due course of law. Aggrieved by the order of the trial

magistrate, the petitioners herein filed criminal revision petitions and the learned Addl. Sessions Judge, Jammu, vide his order of reference dated

25.11.1992 has recommended for setting aside the judgment of the trial court and for reference of the dispute to civil court for adjudication.

I have heard learned counsel for the parties and perused the record.

It is now well sttled that proceedings under Sec. 145 Cr. P.C., are not a substitute for an action of taking possession in a matter where the dispute,

in fact, pertains to title of the parties over the land. The inquiry under this section is limited to the question as to who was in possession in fact on

the date of the order or two months prior thereto irrespective of the question as to the right of the parties. It has further to be shown in the

proceedings that there existed a dispute with respect to the property and the dispute is such which is likely to cause breach of the peace. The

proceedings under this section are only of a summary nature which are intended to provide speedy and less expensive remedy. The paramount

object of this section is to prevent breach of public peace arising in respect of a dispute relating to the immovable property and the magistrate is

required to settle the matter temporarily by maintaining the status quo until rights of the parties are decided by a competent court. The life of the

order passed under this section is conterminuous with the adjudication of rights of the parties by a civil court which when adjudicated would

displace the order of the criminal court passed under this section. In a case the Calcutta High Court held that the principle on which this section is

based is that where a person has the best or worst claim in the world, he should not take law into his own hands and disturb the public peace (AIR

1938 Cal 610).

The facts of the present case are that after the death of Titroo, Gokal Chand respondent herein preferred a claim of being in cultivating

possession of the disputed land irrespective of the fact that the name of Mst. Punna. W/o Titroo was recorded in the revenue record as being in

possession of the property. After the death of Mst. Punna on 10.7.1989. he filed petitions under Sec. 145 Cr. P. C. on 19.81989 and alleged that

the petitioners herein, namely Dev Raj, Jagan Nath and Krishan had dispossessed him and took forcible possession of the land on 13.8.1989

besides threatening to kill him if he dared to re enter the land. Preliminary order was drawn on 12.8.1989 and the disputed land was attached

which was kept on the superdnama of Lumberdar of the village. The claimant Gokal Chand filed affidavits of S/Shri Misher Dass, Kaku Ram and

Sansaro Devi. He also produced copies of Khasra Girdawari and mutations No. 68 and 85 sanctioned under Sections 4 & 7 of the J&K.

Agrarian Reforms Act. The statement of Patwari as a witness was recorded at the instance of counsel for Gokal Chand. The petitioners herein filed

the affidavits of S/Shri Kuldip Raj, Munshi Ram, Shiv Ram and Jagan Nath.

The learned Addl. Sessions Judge, found that the judgment of the trial magistrate did not disclose the reasons on the basis of which Gokal

Chand was declared to be in possession of the disputed four survey numbers. It was further found that the trial magistrate had failed to discuss

each and every affidavit filed by the parties with the result that the conclusions arrived at were based upon mere conjectures and hypothesis. It was

found from the statement of the Patwari that the land was lying fallow at the time when he visited it for attachment and that since Kharif 1971, Titru

was in possession of four survey numbers as tenant and Gokal Chand's name nowhere figured. The trial court has found, on facts, ""This statement

of Patwari clearly reveals that none of the parties were in proved possession on 13.8.1989 when the petitioners herein took the alleged o oble lie

possession."" In coming to the conclusion for setting aside the judgment of the trial court, the revisional court below has assigned the following

reasons:

Firstly, that the respondent Gokal Chand has not prima facie either from the record or from the oral evidence proved to be in actual pyhsical

possession of the disputed four survey numbers;

Secondly, the petitioner Krishen Lal is proved to h taken possession of the disputed four survey numbers on 13.8.89, one month after the death of

Mst. punna. widow of Titroo on his own presuming that possession of the land will revert to him because no heir of Mst. punna has survived.

Thirdly, on 19th August, 1989,as per the statement, of Patwari, possession of the disputed land has b given to Jagan Nath Superdar and at that

time the land was fallow;

Fourthly, the affidavit under 145 Cr. P C filed respondent on 19.8.89 and the preliniary order by the Magistrate has been drawn on 12.9.1989, on

which date the attachment order has also been passed. Under law the trial court was required to decide as to which of the parties was in

possession two months prior to 28.9.91 i.e. the intervening period between 28.6.91 to 28.8.91 or at the most till 12.9.89 when the preliminary

order was passed.

Fifthly, the only ticklish point involved in this revision petition is as to whether the admitted possession of petitioner Krishan Kumar taken by him

without respondent Gokal Chand's consent who was legal heir (brothermlawDevar) of Mst. Punna on 13.8.89 can be considered a valid

possession under S.415 Cr. P. C My reply to this querry is capital ""No"" because mutation under Agrarian Reforms Act has admittedly been

attested in the name of Mst. Punna, widow of Titroo deceased and Gokal Chand being brotherinlaw (Devar) of Mst. Punna was entitled to retain

possession of Mst. Punna which he was affecting by petitioner Krishen lal in due course of law. Such being the case whether Krishan 1al has

endeavoured that the right to possess the disputed land accrued to him after the death of Mst Punna, on the other hand, respondent Gokal's claim

is that right to possession is in his favour and the actual physical possession of the disputed property from the evidence adduced by both the parties

cannot be presumed especially when on 16.10.1989 the disputed land was fellow

Subsec (4) of Sec. 145 Cr. P.C. casts a duty upon the magistrate to consider and assess the value of the written statement, affidavits and

documents filed by the parties. It is obligatory for the magistrate to critically examine each and every affidavit and document produced. An

omission from consideartion vitiates the order. The word ""peruse"" used in subSec. (4) of Sec. 145 means ""to go through critically, to read

thoroughly or carefully"" Mere mentioning the name of the persons who had sworn the affidavits or citing the documents produced, is not enouge.

Valid reasons have to be assigned for nonacceptance of an affidavit or a document. The revisional court below was, therefore, justified in making a

recommendation for selling the order of the trial court as it has been found, on facts, that the trial magistrate had not critically examined the

affidavits and the documents produced in the case.

Learned counsel appearing for the petitioners has rightly argued that the revisional court below was not justified in directing the reference of the

dispute to a civil court under Sec. 146 Cr. P. C. (wrongly mentioned as Sec. 147 in the order of reference). Before making a reference to the civil

court, a finding has to be returned that none of the parties was in possession of the property at the relevant time or that magistrate is unable to

satisfy himself as to which of the party was then in such possession of the subject matter. In deciding to make a reference the magistrate is not

requited to consider the title of the parties to the property and cannot pass an order under Sec. 146 on the ground of his inability to decide the

rights of the parties to possession. The doubt upon which the magistrate has to act for making reference to the civil court must be one which should

be the result of his inability to determine possession upon the evidence adduced in the case. After the revisional court below had come to the

conclusion that the order of the trial magistrate was not based upon proper appreciation of evidence, a further opportunity was required to be

given to such magistrate for passing fresh order in accordance with the provisions of law and after proper appreciation of the affidavits and other

evidence produced in the case. Learned counsel for the petitioners has relied upon AIR 1987 SC 2179 to urge that on the basis of the affidavits

and documents produced the revisional court should itself return a finding of facts and the case should not be remitted back for getting the findings

from the trial magistrate. The facts of the present case are distinct from the case relied upon by the counsel. In that case, the Supreme Court was

considering a case under Sec. 115 C. P. C. which had arisen out of proceedings under the East Punjab Urban Rent Restrictions Act, 1949, and

had found, on facts, that as the concurrent finding of fact was based upon the conjecturess and surmises, completely ignoring the relevant piece of

evidence which remained uncontroverted, the High Court was held justified in rejecting the finding of the Rent Controller and the appellate

authority. In the instant case, there is no positive finding regarding the applicability of Sec. 146 Cr. PC requiring reference to the Civil court as

perusal of the order of reference reveals.

For the reasons stated hereinabove, these references are disposed of by accepting the recommendation of the revisional court below to the

extent that the order passed by 'he trial magistrate, being based upon cot proper appreciation of evidence, is liable to be set aside. The references

are, however, rejected in so far as recommendation has been made for referring the dispute to the civil court. The net result is that the revision

petitions filed by the petitioners herein are accepted by setting aside the order of the trial magistrate and remanding the case back to him for

adjudication and decision in the light of the observations made in this judgment and strictly in accordance with the provisions of law applicable in

the case.

The record of the case be returned to the court below forth with. The parties through their learned counsel have been directed to appear before

the trial court on 7th August, 1993.