Labh Singh and ors. vs State of Punjab and ors.

J.S. Sekhon, J.

Through this petition under section 482 of the Code of Criminal Procedure, 1973, Labh Singh and others who were second party in the proceedings under section 145 of the Code of Criminal Procedure before the trial Court had sought quashment of the orders of the SubDivisional Magistrate, Sangrur as well as of the learned Additional Sessions Judge, Sangrur on the ground that the proceedings under section 145 of the Code of Criminal Procedure could not be instituted against joint coowners of the land having joint cultivation as will as on the ground that the trial Court had wrongly relied upon the order of the Assistant Collector 1st Grade, Sangrur Annexure P3 qua correction of the Khasra Girdawri as it had not yet attained finality.

In brief, the facts of the case are that Ram Ditta grandfather of Labh Singh party No. II and Joginder Singh party No. 1 before the trial Court had three sons namely Dalip Singh, Niranjan Singh and Kaur Singh besides a daughter Mst. Chitin Kaur. Ram Ditta owned about 112 Bighas 6 Biswas of land in the revenue estate of village Rajpura located in District Sangrur. On the death of Ram Ditta, his land was inherited by his three sons in equal shares. Dalip Singh remained unmarried. Labh Singh, Joginder Singh, Nahar Singh, Mst. Mohinder Kaur and Mst Charan Kaur are the children of aforesaid Kaur Singh. During his lifetime, Dalip Singh allegedly used to reside with his nephew Joginder Singh and on 9th June, 1983 Dalip Singh executed a Will bestowing his entire property upon aforesaid Joginder Singh party No. 1 in these proceedings. Dalip Singh died on 10th October, 1988. Niranjan Singh aforesaid alongwith sister Mst. Chitin Kaur challenged that Will in the civil Court but the suit was dismissed on 16th July, 1990 on the basis of some compromise. Labh Singh party No. II also alleges that during his life time his uncle Dalip Singh had given 14 Bighas of land for cultivation purposes while the rest of the land was given to Joginder Singh party No. 1 for cultivation purposes. Labh Singh party No. 11 filed a suit for permanent injunction on 2 Ist October, 1988 for restraining Joginder Singh from disturbing his possession over the disputed land but that suit was dismissed in default on 8th March, 1989. The entries in the revenue record, however, continued, reflecting the land being jointly, cultivated by all the cosharers. Joginder Singh got the entries in the Khasra Girdawri corrected vide order dated 29th January, 1990 of the Assistant Collector IInd Grade, Sangrur. It appears thatthe local police apprehending danger of breach of peace over the possession of the disputed land instituted proceedings under section 145 of the Code of Criminal Procedure on Ist June, 1990. The Executive Magistrate passed preliminary order Annexure P2 on Ist June, 1990 and appointed Naib Tehsildar, Bhawanigarh as receiver of the land on that very date.

Thereafter, both the parties then submitted affidavits and documentary evidence in support of their rival claims. The Sub Divisional Executive Magistrate, Sangrur vide his order dated 19th July, 1991 held Joginder Singh to be in possession of the land in dispute within two months of the passing of the preliminary order under section 145 of the Code of Criminal Procedure on the basis of the order of correction of Khasra Girdawri and on the basis of the decision of the civil Court in earlier litigation between the parties.

Feeling aggrieved against that order, Labh Singh party No. II went in revision, which was also dismissed by the learned Additional Sessions Judge, Sangrur vide his order dated 9th March, 1992. Still being aggrieved against the order of the trial Court as well as of the revisional Court, Labh Singh etc. party No. 11 had invoked the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure.

This petition was admitted after hearing both the parties and the delivery of the possession of the land to the first party till further orders was stayed and the receiver was ordered to continue auctioning the land for lease purposes and invest the amount in the scheme fetching maximum interest of some Nationalised Bank.

At the outset, Mr. Viney Mittal, learned counsel for the respondents raised the preliminary objection qua the maintainability of this petition under section 482 of the Code of Criminal Procedure contending that in fact, it was a second revision petition in the garb of Section 482 of the Code of Criminal Procedure and that the same is barred under the provisions of Section 397 (3) of the Code. Mr. Suraj Parkash Gupta, learned counsel for the petitioners on the other hand maintains that on the facts and circumstances of this case, it cannot be said that this petition is in fact a second revision as the very initiation of the proceedings under section 145 of the Code is bad and illegal because every cosharer in the joint holdings of land would be deemed to be in possession on behalf of all the cosharers.

The law is well settled on the point that if the facts and circumstances of a particular case make out that the petition under section 482 of the Code was in fact the second revision petition, then the same is not maintainable being barred by the provisions of Section 397 (3) of the Code. The Apex Court in Rajan Kumar Manchand v. State of Karnataka, 1988(2) Recent Criminal Reports 662 has reversed the order of the High Court under S. 482 of the Code by holding that under the facts circumstances of that case, the petition under section 482 of the Code was in fact a second revision petition, which was prohibited under section 397 (3) of the Code. Thus, it cannot be said by any stretch of imagination that every petition under section 482 of the Code against the order of the trial Court as well as revisional Court would amount to second revision petition under the garb of petition under Sec. 482 Cr.P.C. because the provisions of this section clearly provide that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the case in hand, the petition under section 482 of the Code would be maintainable in view of the legal controversy whether a resort can be made to the proceedings under section 145 of the Code in the case of any, dispute over possession of joint owners and joint cultivation of the property. Mr. Viney Mittal also relied upon the judgment of this Court in Usha Rani v. Baldev Raj, 1992(2) Recent Criminal Report 105 : 1992(1) Chandigarh Law Reporter 608 wherein on the facts of that case, it was held that the petition under section 482 of the Code was in fact a second revision petition in the garb of such petition. It was expressly barred by the provisions of Sec. 397 (3) of the Code. In that case, the trial Court as well as revisional Court held in proceedings under section 125 of the Code that the wife was not willing party to reside with the husband. Thus, it was held that there being no inherent illegality in the concurrent findings of the two lower Courts the resort to Section 482 of the Code would amount to entertain second revision petition.

The findings of this Court in Rashid v. Smt. Rafia, 1992(1) Current Law Journal 406 to the effect that where revision petition against awarding of interim maintenance allowance in proceedings under section 125 of the Code has been dismissed, filing of the petition under section 482 of the Code would amount to circumvent the bar imposed under section 397 (3) of the Code. Thus the above referred view was also based upon facts of that case.

On the other hand, this Court in Chaman Lal Sankhla v. Narain Datt Vats, 1991(2) Chandigarh Law Reporter 539 had taken a view that maintainability of the petition under section 482 of the Code after dismissal of the first revision petition would depend upon the facts and circumstances of each case and it cannot be said that every such petition would always amount to preferring second revision petition, which is barred under section 397 (3) of the Code. Thus, there is no escape but to conclude that on the facts and circumstances of this case, it cannot be said that this petition would amount to circumventing the bar of maintainability of second revision petition under section 397 (3) of the Code.

On merits, Mr. Gupta learned counsel for the petitioners (second party before the trial Court) contends that the proceedings under section 145 of the Code cannot be instituted where there is likelihood of the breach of peace over the possession of the land, which is jointly owned and cultivated by the parties. The decision of this Court in Madan Jeet Singh v. State of Punjab and ors., 1986(1) Chandigarh Law Reporter 667, has been relied upon in this regard. The abovereferred decision has not been disputed by Mr. Mittal, learned counsel for the respondents but 145 of the Code simply maintains that the proceedings under section can be resorted to where the parties have partitioned the land by mutual arrangements for the purpose of cultivation in order to prevent the breach of peace on the basis of de facto possession.

There is considerable force in the contention of Mr. Mittal because in the case in hand though in the revenue record, the ownership of the land remained joint but the parties have by mutual arrangement stared cultivating it separately because the conduct of Labh Singh petitioner in alleging that his uncle Dalip Singh during his life time had given 14 Bighas of land falling to his share for cultivation to him and the remaining for cultivation to Joginder Singh party No. II itself shows that Dalip Singh deceased used to cultivate his land separately from his brothers Niranjan Singh and Kaur Singh and supports the contention of the first party that the joint land was being cultivated separately to the extent of their respective shares by the coparceners. This conclusion is further fortified from the conduct of Labh Singh petitioner party No. II. If in filing a suit for permanent injunction for restraining Joginder Singh on 21101988 from dispossessing him from the disputed land except in due course of law. This suit was dismissed in default on 8th March, 1989 vide order Ex. P2. Consequently, the bald contention of Labh Singh petitioner that the cultivation of the land also remained joint is not acceptable. According to Labh Singh, he is in actual possession of 5 Bighas 17 Biswas of land out of Rect. No. 254, 3 Bighas 3 Biswas of land of field No. 255 and 5 Biswas of land of field No. 241. It is not disputed that Labh Singh petitioner had set up the version that this land measuring 14 Bighas as given to him by Dalip Singh during his life time for cultivation purposes and it remained in his possession till the institution of the proceedings. The trial Court as well as the revisional Court rightly discarded this claim of Labh Singh by taking into consideration that the ration card as well as other evidence revealed that Dalip Singh during his life time was residing with Joginder Singh and there was no question of giving some land for cultivation purposes to Labh Singh.

Consequently, under these, circumstances, it cannot be said that the provisions of Section 145 of the Code cannot be invoked in case of dispute of joint holding over possession of the land between two parties when they had started cultivating it separately.

There is no force in the second contention of Mr. Gupta that the order of the Assistant Collector IInd Grade regarding correction of khasra girdawri was wrongly relied upon by the lower Courts. It is noteworthy in this regard that the order Ex. P3 (29th January, 1990) was passed by the Assistant Collector IInd Grade after spot inspection and recording the statements of the witnesses. The girdwari for the year Sawni 1989 to Hari 1990 was corrected and the disputed land besides some other land was shown in selfcultivation of Joginder Singh. It is the admitted case of the parties, that the appeal preferred against that order was dismissed by the Collector on 11th January, 1991. Mr. Gupta contends that the petitioner had filed a declaratory suit on 18th December, 1991 for declaring the abovereferred order of the Assistant Collector 1Ind Grade as nullity. It is note worthy that the order of the correction of khasra girdawri was passed five months prior to the institution of the present proceedings and simply because an appeal against that order was pending when the Sub Divisional Magistrate passed the final order in proceeding''s under section 145 of the Code, it cannot be said that he had wrongly relied upon that order especially when subsequently the Collector had dismissed the appeal preferred against that order by Labh Singh petitioner. The mere factum that Joginder Singh respondent had not resorted to correction of khasra girdawri earlier is of no consequence since a party in possession of the land need not challenge the adverse entries in the revenue record unless the other party takes steps to oust it from such possession. In the case in hand, Dalip Singh died on 10th October, 1988 and on his death by virtue of the Will, Joginder Singh respondent became owner of that land due to the dismissal of the suit filed by Niranjan Singh and Mst. Chitin Kaur challenging the said Will although on the basis of compromise which would imply that validity of the Will was accepted by brother and sister of Dalip Singh testator also. Consequently, under these circumstances, the conduct of Joginder Singh in resorting to correction of khasra girdawri after the death of Dalip Singh cannot be said to be belated as it appeared that thereafter, Labh Singh etc. party No. 11 had tried to dispossess him.

Consequently, for the reasons recorded above, no case is made out for quashing the impugned order of the trial Court as well as revisional Court. This petition is, therefore, ordered to be dismissed. The receiver shall hand over the possession of the disputed land to Joginder Singh etc. first party after the expiry of the period of subsisting lease, if any. The amount in some scheme in Nationalised Bank from the proceeds of lease money of this land shall also be released in favour of Joginder Singh.