Kashmir Singh vs Bakhshish Singh

Dr. (Mrs.) Sarojnei Saksena, J.

The petitioner has filed this revision against the order of the Additional Sessions Judge, Faridkot, Annexure P1, whereby he has set aside the order passed by the SubDivisional Magistrate, Malout, on June 30, 1993, Annexure P3.

A short backdrop of the case is that SHO Police Station Sadar Malout sent a Kalendra to the SDM Muktsar under Section 145 of the Code of Criminal Procedure (in short, the Code) regarding the disputed land situate in village Sarawan. On receiving this Kalendra the SDM passed a preliminary order under section 145(1) of the Code and directed the parties to appear and to submit written statements of their respective claims in regard to the fact of actual possession of the disputed land. Thereafter vide order dated May 6, 1991, receiver was appointed under Section 146 of the Code. In the meantime, a petition under Section 482 of the Code was filed in this Court against the said proceedings. This Court only stayed the passing of the final order. Thereafter the proceedings were being conducted before the SDM. The petitioner also filed a civil suit for declaration praying that he be declared owner of the suit land and also pleaded that he is in possession of the suit land. During the pendency of this civil suit, status quo order was passed. This civil suit was decreed in favour of the petitioner on April 7, 1993.

Thereafter the petitioner filed a petition before this Court to vacate the stay order. Such an order was passed on April 29, 1993.

The petitioner filed copy of the judgment dated April 7, 1993, of the Civil Court before the SDM. At that time the respondents also filed few affidavits and alleged that they are in possession of the suit property. However, no evidence was adduced by either side to prove their possession before the SDM. The respondents also filed copy of the stay order granted by the District Court in appeal, which they filed against the judgment and decree passed by the Civil Court in favour of the petitioner.

The learned SDM considered all these documents and in pursuance of the judgment given by the Civil Court, he held that petitionerKashmir Singh is in possession of the disputed property and closed the proceedings. He also directed the receiver to hand over possession of the disputed land to petitionerKashmir Singh. In pursuance of the SDM''s order, possession of the disputed land was handed over to petitionerKashmir Singh by the receiver on July 13, 1993 Annexure P8.

The respondents filed revision in the Court of Additional Sessions Judge, Faridkot, who allowed the revision, set aside the order of the SDM and remitted the case back to him to hold further proceedings.

The petitioners'' learned counsel submitted that the Civil Court has held that he is in possession of the disputed land. No doubt, that judgment and decree is under appeal and the appellate Court has granted status quo order, but in pursuance of the order of the SDM the receiver has already delivered possession of the disputed land to the petitioner on July 13, 1993. Without considering all these facts, the learned Additional Sessions Judge has vacated the well reasoned order of the SDM Annexure P3.

The respondents'' learned counsel contends that no doubt the Civil Court has decreed the petitioner''s civil suit for declaration and has held that the petitioner is in possession of the disputed land, but respondents have filed Civil Appeal against that judgment and decree and the appellate Court has passed status quo order. This order was passed on April 30, 1993. Thereafter the SDM should not have passed the impugned order Annexure P3 on June 30, 1993, because in view of the status quo order passed by the appellate Court, the finding recorded by the Civil Court that the petitioner is in possession of the disputed land remains stayed. He also pointed out that during the pendency of the civil suit on May 9, 1991, the petitioner filed a petition under JUDGMENT 40 Rule 1 CPC praying that a receiver be appointed to cut the crop standing on the disputed land. Learned counsel vehemently argued that by filing this petition, the petitioner himself admitted that he is not in possession of the disputed property. Thus, it is obvious that the Civil Court''s finding that the petitioner is in possession of the disputed land is assailable and is being assailed by the respondents. Considering these facts, the appellate Court has granted status quo order. The respondents were in possession of the disputed property. Under the orders of the SDM possession of the property was taken over by the receiver. Therefore, when the SDM thought it fit to drop the proceedings, he ought to have directed that the receiver should deliver back the possession of the disputed property to that party from whom possession was taken by the receiver at the initial stage on May 6, 1991.

The respondents'' learned counsel also contended that the Additional Sessions Judge has rightly passed the impugned order, because from the SDM''s record it is evident that the respondents were never given an opportunity to adduce evidence on their behalf to prove their possession. Only party No. 2 i.e. the petitioner was directed to produce his evidence. Many dates were given to him to produce his evidence. He could not examine any witness and finally on the passing of the Civil Court''s decree, he simply filed copy of that judgment/decree, on the basis of which the SDM dropped the proceedings under section 145 of the Code and got the possession of the disputed land delivered to the petitioner. Thus, according to him, the learned Additional Sessions Judge has rightly vacated the SDM''s order and has rightly directed him to conclude the proceedings under section 145 of the Code.

Petitioner''s petition dated May 9, 1991, filed under JUDGMENT 40 Rule 1 CPC was read over by the respondents'' counsel during arguments. In this petition the petitioner has specifically averred that he is in possession of the disputed land. He has sown the crop therein and now the respondents want to forcibly dispossess him and to cut the crop. Therefore, he prayed that receiver be appointed to cut the crop and to auction it, so that its money be deposited in the Court, to be disbursed in favour of the successful party at the time of the decision of the suit. Thus, from this petition also it is evident that the petitioner has pleaded that he is in possession of the disputed land. The Civil Court has also given a finding that he is in possession of the disputed land and he is also held to be the owner of the disputed land.

No doubt, the respondents have assailed this judgment and decree by filing a Civil Appeal, wherein the appellate Court has passed ''status quo'' order, but it is pertinent to mention that the appellate Court has not stayed the operation of the decree. Status quo order can be interpreted by either side in his own favour. The Civil Court has held that the petitioner is in possession of the disputed land. This finding is under challenge, but there is no order of any Court on the basis of which it can be said that this finding is set aside or its operation is stayed or the respondents are held to be in possession of the disputed property. Therefore, in my considered view, the socalled status quo order does not help the respondents at all.

With the help of the parties'' counsel, the Zimini orders passed by the SDM were read over to me. When the initial order was passed by the learned SDM he directed the parties to submit their written statements of their respective claims with regard to the fact of actual possession of the disputed land. Thereafter the case was posted for evidence. In few of the Zimini orders, it is mentioned that party No. 1petitioner is directed to produce his evidence. The case proceeded on various dates at the request of the parties. After the decision of the civil suit, the petitioner filed ordinary copy of judgment/decree of the Civil Court and prayed that he is held in possession of the disputed property; therefore, the proceedings be dropped. This is also on record that before that the petitioner moved a petition in this Court and stay order granted earlier was vacated on April 29, 1993, by this Court. When the petitioner filed copy of that judgment and decree, respondents filed affidavits of Chander Singh, Piara Singh and Kirpal Singh and also filed copy of the status quo order passed by appellate Court. At that time the respondents could have made a specific prayer that they want to adduce evidence before the SDM that they are in possession of the disputed property and not the petitioner, but they were satisfied by filing only these three affidavits along with the status quo order. The learned SDM has considered these documents. He has also observed that many opportunities were given to the parties to adduce their evidence, but respondents have filed only these affidavits, which cannot be taken as proof of possession. In view of the judgment passed by the Civil Court, the SDM dropped the proceedings under section 145/146(1) of the Code and directed the receiver to hand over possession to the petitioner, in whose favour the Civil Court''s decree stands. In pursuance of the order dated July 13, 1993, possession of the disputed land has already been given to the petitioner. The Civil Appeal of the respondents is not yet decided. The decision of the Civil Appeal will decide the claims of the parties, but till then in view of the chequered history of the case, since the possession is with the petitioner, in my view the Additional Sessions Judge has wrongly set aside the order of the SDM and has remanded the case to him to conclude the proceedings under section 145 of the Code.

The learned Additional Sessions Judge has observed in his order that not even certified copy of judgment and decree passed by the Civil Court was filed by the petitioner and on the basis of this ordinary copy of judgment and decree the SDM has passed the impugned order. When the factum of passing of the judgment and decree was not disputed by the respondents, it was immaterial whether the copy of the judgment and decree was an ordinary copy or a certified copy.

An order under section 145 of the Code deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the Civil Court. The unsuccessful party, therefore, must get relief only in the Civil Court. In this case not only the petitioner has approached the Civil Court, but a decree has been passed in his favour, wherein he is held in possession of the disputed property.

In view of these facts, in my considered view, the impugned order is liable to be set aside. Accordingly, the revision is allowed. The impugned order Annexure P1 is set aside.