Jagir Singh vs Ajmer Singh

T.H.B. Chalapathi, J.

This application is filed to quash the order of the Additional Sessions Judge, Ambala dated 7.6.1999 confirming the order passed by the SubDivisional Magistrate, Ambala dated 2.12.1998.

On the basis of the report of the police, proceedings under Section 145, Cr.P.C. have been initiated. The dispute is in regard to the agricultural land of the extent of 875 Kanals 9 Marlas situated in village Roshanpura. The property was in occupation of the tenants. The landlords wanted to evict them forcibly. Apprehending breach of peace, a report has been made to the Sub Divisional Magistrate by the police for initiation of proceedings under Section 145 Cr.P.C. and the SubDivisional Magistrate by his order dated 15.1.1996 attached the land and also appointed the Tehsildar, Ambala as a Receiver by his order dated 27.11.1996.

The tenants preferred a revision against the said order of attachment which was dismissed on 29.1.1997. This Court also confirmed the said order by its order dated 31.7.1999. Thereafter by an order dated 30th July, 1998, the Sessions Judge, Ambala in pursuance of the directions given by the Apex Court upheld the attachment and appointed Tehsildar Ambala as Receiver and he directed the SubDivisional Magistrate to decide the matter within four months. By an order dated 2.12.1998, the SubDivisional Magistrate directed the Tehsildar, Ambala to furnish information as to who has been in possession of the property in dispute on the basis of the consent of the parties and on the basis of the report of the Tehsildar, the SubDivisional Magistrate held that the Ist Party i.e. tenants remained in possession of the land under their tenancy despite various types of litigation continued between the parties. He accordingly held that the tenants have been in possession of the same and further directed that if any person has been ousted forcibly, he should be restored to his possession. He also incorporated in his order a tabulated form giving the names of the owners, names of the cultivators entitled for possession and Khasra numbers with area. Against the said order, the landlords filed a revision petition before the Additional Sessions Judge, Ambala. By the impugned order dated 7.6.1999 the revision petition was dismissed. Hence this application under Section 482 Cr.P.C.

It is pertinent to note that before the SubDivisional Magistrate both the parties agreed to call for a report from the Field Staff for ascertaining as to who has been in possession of the property. It has been observed by the SubDivisional Magistrate in his order dated 2.12.1998 as follows :

"During the course of arguments both the parties had agreed to summon a report from the field staff ascertaining as to who of both the parties were in possession of the land and to what extent on or two months prior to the submission of the calenders on 29.9.1995. Accordingly a letter bearing No. 737/Peshi dated 2.11.1998 was written to the Tehsildar Ambala and the requisite information was received vide his No. 1270 dated 18.11.1998. There is nothing to show that the second party had taken possession of the land as has been alleged and the question of their taking possession also does not arise as the order of partition under which the possession has been asserted to be of the 2nd party has since been set aside by the Commissioner, Ambala Division, Ambala Cantt. Further from the order of Ld. Sessions Judge, Ambala dated 30.7.1998 it is also very much clear from the opening lines of para 6 that the tenants have all along been in possession of the land for the last several years and there appears to be no dispute that the Ist party have been tenants on specific portion of the land i.e. the land in dispute. In partition proceedings the possession of tenants was not to be disturbed and the tenants were to remain at their original place. When they were disturbed there was violence and murder took place in the village. The circumstances of the case clubbed together obviously go to prove that Ist Party/tenants remained in possession of the land under their tenancy despite various type of litigation continued between the parties. The report called for from the Tehsildar, Ambala as referred to above also proves this fact. I, therefore, find that at the time of institution of these proceedings U/s 145 Cr.P.C. the following persons irrespective of their tenancy or ownership were in possession of the land I hold their possession over the land accordingly."

It may not be out of place to mention here that the initiation of proceedings under Section 145 Cr.P.C. is primarily to maintain the peace. Admittedly, there is a dispute in regard to possession between the parties. It is also evident from the record that there were clashes between the parties claiming possession of the property and one person was also killed. The learned SubDivisional Magistrate on the basis of the factual position on the spot as reported by the Tehsildar passed his order dated 2.12.1998. The same has been confirmed by the Additional Sessions Judge, Ambala. The proceedings under Section 145 Cr.P.C. are not intended to determine the question of title or the right to be in possession of the property. It is a matter to be decided by the Civil Court. The order passed by the SubDivisional Magistrate is always subject to the final order of the Civil Court.

It is no doubt true that the land in question was ordered to be partitioned among the owners in the year 1988, but the order of partition does not affect the tenants on the land. The shareholders will be entitled to only symbolical possession and the tenants in occupation of the land will be attorned to the landlords to whose favour the particular piece of land has fallen. Under the garb of a partition proceedings, the tenants who have been in possession of the property cannot be evicted. When the suit property has been in possession of the tenants, they have to be evicted in due course of law. The reliance placed by the learned Counsel for the petitioners on the order of the Additional Senior Sub Judge in Civil Suit No. 344 of 25.7.1995 confirming the order of injunction dated 31.5.1995 is misplaced. It is pertinent to refer to the observations of the learned Additional Senior Sub Judge, Ambala in his order dated 27.5.1995 :

"Since the revenue authorities are carrying the orders in accordance with the law and under the direction of the competent authorities, hence they cannot be restrained from executing their order. However the revenue authorities are directed to accommodate the defendants at a different piece of land as tenants. The tenants have no locusstandi to challenge the partition proceedings."

But the tenants have every right to remain in possession of the property in spite of the partition proceedings among the cosharers.

In this view of the matter, I do not find any illegality or irregularity in the orders of the Courts below. The criminal Misc. petition is, therefore, dismissed.

It is needless to mention that the orders under Section 145 Cr.P.C. are subject to the result of the civil suit to which the tenants are parties.