Makshood Alam @ Makshood vs Nehal

Pradeep Kumar Srivastava, J

Heard learned counsel for the parties.

The petitioner has challenged the order dated 25.07.2009 passed by learned Executive Magistrate, Ramgarh in Case No. 35 of 1997 (T.R. No. 22/09) registered under Section 145 of the Cr.P.C. by way of this revision directly to the High Court.

It appears that a proceeding was initiated under Section 145 of the Cr.P.C. in respect of lands pertaining to Khata No. 130, Plot No. 1180, area 38 decimals, Plot No. 1217, area 10 decimals and plot no. 1219, area 28 decimals, total areas 76 decimals and learned SDM, after considering oral as well as documentary evidence and written reply of show cause notice and other materials placed on record, declared the possession of second party members over the land under dispute and also vacated the order of appointment of Receiver for the said property vide order passed on 17.11.1997 and Receiver was also exempted from any liability.

Factual matrix giving rise to this revision is that the land of Khata No. 130 of Village – Karma was recorded in the name of Shiekh Ramjan Mian and other s and the separate Kabjawari was also recorded in the name of Sheri Mian and Dili Mian in the remarks column of the Khatian as per their possession and the said Shiekh Ramjan Mian, Sheri Mian and Dili Mian were sons of Bandhu Mian. Sheri Mian has got two sons namely, Nabir Mian and Tunu Mian and both the sons of Sheir Mian inherited the property of their father and they amicably portioned the lands of Khata No. 130, Plot No. 1180, area – 43 decimals, Plot No. 1217, area 47 decimals and plot no. 1219 28 decimals. Nabir Mian felt in urgent need of money and as such, he sold the land of Khata No. 130, Plot No. 1180, area 0.38 acres, Plot No. 1217, area 0.10 acres and Plot No. 1219, area – 0.28 acres, total area 0.76 acres situated at Village – Karma, P.S. – Mandu, District – Hazaribagh to Jaigun Nisha (the mother of the petitioners) on payment of cash consideration amount of Rs. 500/- by means of registered deed of sale dated 10.01.1970 vide Deed No. 573.

After purchase, Jaigun Nisha came in exclusive possession over the aforesaid land and applied for mutation for her name in the office of Anchal Adhikari, Mandu and after thorough enquiry, the name of Jaigun Nisha was mutated and rent receipts were issued against the payment of rent.

Jaigun Nisha excavated a tank over the land of Plot No. 1217, area 0.10 acres and over the lands of Plot No. 1219, area 0.28 acres by spending huge amount and have amalgamated the land of Plot No. 1180, which was already a pond with the aforesaid plots, alleged to be excavated as tank by the first party member. After death of Jaigun Nisha, her sons (petitioners) inherited the aforesaid property and came into exclusive possession of the tank.

In the year 1997, the opposite party came with deadly weapon tried to forcibly took possession of the tank constructed over the land in question and also illegally tried for fishing in the said tank, which was peacefully obstructed by the petitioners, but the opposite party got agitated and threatened to kill them.

Thereafter, the petitioners have filed a case being Case No. 35 of 1997 under Section 145 of the Cr.P.C. before the learned Sub Divisional Magistrate, Ramgarh for initiation of proceeding under Section 145 Cr.P.C.

The learned Sub Divisional Magistrate, Ramgarh vide order dated 17.11.1997 attached the land in question under Section 146(i) Cr.P.C. and In-Charge of Kuju O.P. was appointed ‘Receiver” of the said tank.

Being aggrieved by the aforesaid order dated 17.11.1997, the opposite party has filed Revision Application being Criminal Revision No. 45 of 1998 before the learned VIIth Additional District & Sessions Judge, Hazaribagh, which was heard and the same was dismissed vide order dated 10.10.2002.

The proceeding under Section 145 Cr.P.C. was contested by the opposite party with regard to the possession over the land in question.

Learned Executive Magistrate having considered rival contentions of the parties and the evidence of witnesses and other materials produced before him found the evidence of second party members to be reliable and free from doubt and also arrived at conclusion that at the time of initiation of proceeding second party members were in actual possession under land in proceeding. Accordingly, declared their possession and passed a restrictive order against first party member not to create hinderance on the peaceful possession of the second party over the tank constructed on the said land. Further, the land in question has also been freed from the responsibility of the receiver who was appointed on 17.11.1997 when the tank in question was attached by the order of learned S.D.M., Ramgarh, which has been assailed in this revision filed before the High Court.

Learned counsel for the petitioners has submitted that the learned court below has committed grave error of law appreciation of evidence. It is further submitted that the learned court below has committed grave error of law in deciding the title of the second party in a proceeding under Section 145 of the Cr.P.C. It is further submitted that the witnesses examined by the petitioners and documentary evidence placed before the learned court below clearly reveals that the petitioners who has inherited the land in question through their mother Jaigun Nisha, who had purchased the same from Nadim Mian through registered deed of sale bearing its No. 573 dated 10.01.1970 and have remained in continuous possession of the same since then and the opposite parties is claiming possession over the tank in question on the basis of forged sale deed no. 504 dated 31.08.1937 executed by Nabir Mian and Turu Mian and other sale deed executed by Nabir Mian and Turu Mian. Hence, impugned order is not justified under law and liable to be set aside and this revision is fit to be allowed.

On the other hand, learned counsel appearing for the opposite parties has vehemently opposed the aforesaid contentions raised on behalf of the petitioners and submitted that in a proceeding under Section 145 of the Cr.P.C., the Magistrate has to record subjective satisfaction / findings regarding actual physical possession on or during the proceeding initiated under Section 145 of the Cr.P.C. of either of the parties. It cannot go into deciding the title of the parties or any findings arrived at on the basis of claim of title, which is within the ambit and scope of civil court of competent jurisdiction only. The petitioners have not claimed their right, title and possession before the competent civil court as yet. Therefore, there is no illegality or infirmity in impugned order, calling for any interference, by way of this revision, which is fit to be dismissed.

I have gone through the record of the case and perused the impugned order passed by the learned SDM. Admittedly, the proceeding regarding dispute of possession between the parties regarding land under proceeding was initiated of the year 1997, which was concluded in the year 2009 and since the year 2009, present criminal revision is pending. Nearly, 15 years have passed, but none of the parties ever bother to take recourse of competent court of civil jurisdiction to get their right, title interest to be declared and confirmation of possession over the disputed land. It is settled law that a proceeding under Section 145 Cr.P.C. is meant for preservation of peace and tranquility. An order passed under Section 145 of the Cr.P.C. deals only with factum of possession of a party as on particular date. It confers no title to remain in possession of the disputed property. The order is subject to decision of civil court. He may move the civil court with properly constituted suit. He may file suit for declaration and proof of better right to possess. The Civil Court has jurisdiction to give finding different from which the Magistrate has reached. Thus, the party cannot be permitted to litigate before the Criminal Court where proper remedy lies before the competent court of civil jurisdiction.

In the above-mentioned facts and circumstances, I do not find any valid reasons to interfere with the impugned order and no merit in this revision, which stands dismissed.

Let a copy of this judgment along with trial court record be sent to the court concerned for information and needful.