Mahadeo vs Gaon Sabha and Another

J.N. Takru, J.—This revision arises out of proceedings u/s 145, Code of Criminal Procedure.

It appears that on the 1st June, 1965 the Gaon Sabha Sarai Boghi moved an application, through one of its members, before the S.D.M. Machlishahr, alleging that the seven plots, measuring 1.91 acres, mentioned in that application were banjar land, belonging to the Applicant, that six of them were used for pasture and one was used for skinning dead animals and that a couple of days before, the 2nd party, i.e. the present Applicants--who had no concern with those plots tried to take possession over them forcibly as a result of which there was an apprehension of the breach of peace and danger to life and property. The Gaon Sabha therefore prayed for necessary action u/s 145 Code of Criminal Procedure.

On this application the S.D.M. concerned called for a report from the S.O. Sujanganj and on receipt of it and satisfying himself from it that there was an apprehension of breach of peace as alleged in the aforesaid application, he passed a preliminary order on the 26th of June, 1965 and pending his decision attached the plots in dispute. By the same order he required the parties to file their written-statements, affidavits etc. in support of their respective claims regarding the fact of actual possession of the subject of dispute. The Applicant filed his written-statement supported by an affidavit claiming, inter alia, (1) that Sita Ram Singh had no right to move the application on behalf of the Gaon Sabha which was, therefore, not maintainable, (2) that the Applicant had filed a suit u/s 229B of the UP Zamindari Abolition and Land Reforms Act for a declaration that he was the owner in possession of the said plots and in that suit the Gaon Sabha after passing a resolution admitted his claim and the suit was decreed in his favour on the 19th of May, 1965 and (3) that after the passing of the decree in the aforesaid suit Sita Ram Singh moved a restoration application which was, dismissed. In support of his claim the Applicant also filed extracts of the Khasra of 1372 Fasli and a certified copy each of the judgment and decree in suit No. 97 of 1965 which he had filed u/s 229B of the UP Zamindari Abolition and Land Reforms Act, a certified copy of the order passed on the restoration application of Sita Ram Singh on the 15th June, 1965 and the statement made by Satya Narain Singh, the Pradhan on the 1st of May, 1965 in that suit.

Sita Ram Singh filed his written statement and affidavit, besides the affidavits of a large number of persons of the Gaon Sabha in support of the latter''s claim. His case so far as the suit u/s 229B was concerned was that the Applicant filed it in collusion with the Pradhan of the village and without the knowledge and information of the members of the Gaon Sabha and the members of the Land Management Committee and fraudulently obtained an ex-parte decree therein. Thereupon Sita Ram Singh filed a restoration application but it was withdrawn by the D.G.C. (R) in collusion with the Applicant.

The learned S.D.M. after weighing the evidence of the parties and making a local inspection held that the Gaon Sabha was in possession over the land in dispute within two months next prior to the passing of the preliminary order. He, therefore, released the afore, said property in its favour and restrained the Applicant from interfering with its peaceful possession until evicted in due course of law. The Applicant went up in revision to the learned Sessions Judge, but with no better luck. Hence this revision.

On behalf of the Applicant his learned Counsel Sri Bhola Nath Srivastava contended that as there was a decision of a competent court on the question of possession over the plots in dispute in favour of the Applicant the courts below were bound by that decision so long as it stood undisturbed and the learned S.D.M. was therefore in error in sitting in judgment over that decision and coming to a different finding. After hearing the learned Counsel for the parties I am satisfied that this contention is well-founded.

Now there is abundant authority for the proposition that where the rights of the parties have been recently determined by a competent court--be it a revenue court--the dispute comes to an end and it is the duty of the Magistrate in proceedings u/s 145 Code of Criminal Procedure to maintain the rights of the successful party and not to allow the defeated party to invoke an aid of the Magistrate and the police to neutralise the effect of the decree of that court: vide Mrs. V.E. Argles v. Chhail Behari 50 Cr.L.J. 345, Bipat and Ors. v. Dwarka 1961 AWR 658, Jang Bahadur Singh v. Najtnul Haque and Ors. 47 CrLJ 976, Kishori Jha and Anr. v. Anand Kishore Jha 31 CrLJ 1005 and Multani and Anr. v. Shah Abus Turab Qadri and Ors. 1962 (2) CrLJ 709, Vol. 65 CN 221. In Kishori Jha and Anr. (4) it was further held that even in a case in which the ex-parte decree is alleged to have been obtained fraudulently the Magistrate can do nothing, as it is not their jurisdiction to examine the charge of fraud and that if any party has a grievance against a decree on that score, he should take such steps as he considers necessary to get the said decree set aside by a civil court. On the basis of these authorities, which are all one way, the judgments and orders of the court below cannot be sustained and have to be set aside. I, therefore, set them aside and allow this revision.