Man Singh and ors. vs Jai Pal and ors..

J.S. Sekhon, J.

The petitioners Man Singh etc., the second party have filed this petition under section 482 of the Code of Criminal Procedure, 1973 for quashing the order of the Executive Magistrate, Ambala Annexure P1 to initiate proceedings under section 145 SubSection (1) of the Code and the order Annexure P2 attaching the land in dispute and appointing the Tehsildar as receiver in those proceedings inter alia contending the petitioners being already in possession of the property in dispute, there was no legal justification for initiating proceedings under section 145 of the Code or for attaching the land and appointment of receiver.

The brief resume of facts figuring in the calendara submitted by the police is that the land in dispute is the shamlat deh of the Gram Panchayat of village Sehla. The committee of the Gram Panchayat got planted eucalyptus trees from the Forest Department. These plants were distroyed by the animals and are now confined to very small piece of land. Rest of the land has been cultivated by the second party (i e. the present petitioners) with tractors. The first party has got a stay order from the Court with respect to the possession of this land but the second party had again cultivated it despite the stay order. It is also averred that the first patty had filed an application for the partition of this shamlat land before the revenue authorities. It is further mentioned in the calendar that both, the parties are asserting their right to cultivate the land and that there is imminent apprehension of breach of peace. Under these circumstances, the report was submitted before the Sub Divisional Magistrate for initiation of the proceedings under section 145 of the Code The. Sub Divisional Magistrate. vide order Annexure P1 dated 13th of July, 1990 being satisfied that there can be breach of peace at any time over the possession of the land in dispute issued notices to both the parties under section 14.5 sub section (1) of the Code for 30th of July 1990. During the pendency of these proceedings on the request of the learned counsel for the first party (i.e. the present respondents), the Executive Magistrate vide order Annexure P2 dated 25th of October, 1990 ordered the attachment of the property i.e. the land and appointed tehsildar, Barara as receiver to take possession of the property. Accordingly, the land was attached by the revenne authorities on 28th of October, 1.990 and both the parties were directed to a pear before the Tehsildar, Barara on 30th of October, 1990. The Tehsildar auctioned the paddy crop and Sirkanda reeds grown on the attached land and the present petitioners had taken those crops in auction for Rs. 13,100/ and had deposited 25% of the bid money.

The petitioners in this petition inter alia contended that their possession over the land in dispute is well established from the report of the police initiating these proceedings as well as from the rapat roznamcha Annexure 114 entered by the Kanungo on 28th of October, 1991 showing that the petitioners were found harvesting the paddy crop at that time. It is also averred that the security proceedings were also instituted between the parties. Thus it is maintained that the pendency of the proceedings under section 145 of the Code and attachment of the land were abuse of the process of the Criminal Court.

In return filed by the first party, it is maintained that the land belongs to the proprietors of the village and fifteen persons (out of the present petitioners) being not owners of any land in this village, are not entitled to the possession of the shamlat land. It is further averred that the petitioners are not in settled possession of the land but had taken its illegal possession. Thus it is maintained that initiation of the proceedings under section 145 of the Code and attachment of the land under section 146 of the Code was well justifiable. The pendency of the security proceedings between the parties was, however, admitted ''as well as the factum that the partition proceedings between the proprietors of the village are pending before the revenue authorities qua this land.

I have heard the learned counsel for the parties besides perusing the record.

No doubt, some of the petitioners who are not proprietors of land in this village cannot be said to be cosharers of the land, thus are not entitled to any share in the common land of the village, yet all the same, it is of no consequence as the question of ownership or title is not relevant consideration for invoking the provisions of section 145 of the Code in order to prevent the breach of peace over the possession of the land. The relevant provisions of section 145 read as under :

S. 145 Procedure where dispute concerning land or water is likely to cause breach of peace :

(1) Wherever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute Itkely to cause a breach of the peace exists concerning any land or water or the boundries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) x x x x x x

x x z x x x

(3) x x x x x x

x x x x x x

(4) The Magistrate shall then. without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under subsection in possession of the subject of dispute : Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a Police officer or other information was received by the Magistrate, after that date and before the date of his order under subsection (1), he may treat the Party so dispossessed as if that party had been in possession on the date of his order under subsection (1).

(5) x x x x x

A bare glance through the above referred provisions leaves no doubt that the defacto possession of the land or water or crops growing on such land is the relevant consideration for initiating the proceedings under section 145 of the Code for preventing the breach of peace. The proviso to subsection (4) further shows that the powers of the Magistrate relate to the extent of restoring possession to a party which had been forcibly and wrongly dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate or the date of order under sub section (1). Thus there is no doubt that even if a person is in possession of the land for more than two months immediately before initiation of proceedings or passing of order under section 145(1) of the Code by a Magistrate, he will be considered in settled possession by necessary implication.

Consequently, the only relevant question which survives for determination is whether the present petitioners were in possession of the land on the day of initiation of proceedings or that there is imminent apprehension of branch of peace between the parties over possession of his land in this regard, it is noteworthy that in the report itself, the police had reported that the second party was in possession of the land and had cultivated it with tractors. It is further mentioned that the first party (i.e. the present respondents) have got a stay order from the civil Court but the second party has again cultivated it inspite of the stay order. The perusal of the stay order Annexure P3 shows that the suit was filed by Bharat Singh and Dharam Singh. The defendants in that case including Jai Pal respondent as well as some of the petitioners were restrained from cutting the trees from the suit land. Thus it can be well inferred that the exparte injunction order related to the trees only passed on 11th of January, 1990. The impugned order Annexure P1 under section 145 of the Code was passed on 13th of July, 1990''. The certified copy of the calendars shows that it was .forwarded ''by the police on 3rd of July, 1990 i.e. much after the ''expiry of the period of six months of the above referred stay order of the civil Court. That stay order will not prevent the second party from cultivating the land but simply prevent them from removing the trees therefrom : Consequently. it cannot be said that the present petitioners had committed any'' violation of that stay order by cultivating the land.

The perusal of the calendara (report dated 3rd of July, 1990) of the police shows that the land measuring 255 Kanals 9 Marlas is shamiatdeh and that the'' committee appointed by the Gram Panchayat had planted eucalyptus trees thereon but due to damage by the cattle only trees are confined to a small area and that party No. 11 (i.e the present petitioners) had cultivated this land by ploughing with tractors and that the first party had got a stay order from the Court but the second party, again cultivated it despite the stay order. Thus it appears that the second party was in cultivating possession of the land even prior to 11th of January, 1990 when the Civil Court had granted stay order Annexure P3 restraining the defendantrespondents in that case from cutting the trees from the suit laud. The matter does not rest here as the rapat roznamcha Annexure P4 also shows that the paddy crop growing on the land. was represennted to be that of Man Singh and Mirag Pal, (the present petitioners) in the presence of Jai Pal of the first party. It is further mentioned by the Kanungo that at the time of'' his visit, Mirag Pal and Ramesh Chander etc. in all about 25/26 persons were found cutting paddy crop and that they had already removed one trolley of the paddy crop. This report was made on 28th of October 1990. It is not the case of the first party that the second party had taken possession of the land within a period of two months prior to the institution of these proceedings. Thus under these circumstances, there is no escape but to conclude that the second party (i.e. the present petitioners) were in settled possession of the disputed land even prior to the passing of the stay order Annexure P3 dated, 11th of January, 1990 whereas the present proceedings were initiated in. the month of July, 1990, So. there is no force in the contention of Mr. Maharaj Singh, Advocate, that the possession of the second party was not in settled possession over the land in dispute.

The mere factum that the entries in Khasra Girdawries or Jamabandies simply depict the cultivating possession of the land Khud Kasht Makbuza Malkan is of no consequence in view of the above referred report of the local police as well as of the revenue authorities. It is not disputed that the security proceedings under sections 107/150 of the Code are pending between the parties and that the partition proceedings are also pending before the revenue authorities qua this very land. Thus under these circumstances, initiation of proceedings under section 145 of the Code or the attachment of land and appointment of receiver under section 146 of the Codes being abuse of the process of the Court are quashed by accepting this Petition. The receiver shall return the auction money of the produce of the land etc., lying deposited with him to the present petitioners.