Md. Mahasin Ali vs State Of West Bengal & Ors

Madhumati Mitra, J

This is an application under Section 401 read with 482 of the Code of Criminal Procedure filed by the petitioner challenging the impugned order dated 22nd June, 2015 passed by the Sub-Divisional Magistrate (Sadar), Berhampore, District Murshidabad in Miscellaneous Case No.2 of 2015.

Facts in brief, as narrated by the present petitioner are as follows:

The total area of land of R.S.Plot Nos.3875 and 3876 is 14 decimal and 8 decimal respectively. One Bagala Ranjan Mukherjee had one third undivided share in respect of both the said R.S.Plots. After the demise of said Bagala Ranjan Mukherjee his sons and daughters inherited his undivided one third share in respect of said two R.S.Plots. Thereafter, the names of the legal heirs of said Bagala Ranjan Mukherjee were recorded in respect of said two plots.

Petitioner has stated that he was a tenant under the said Bagala Ranjan Mukherjee in respect of two rooms standing on a portion of said R.S.Plot No.3875. During his life time Bagala Ranjan Mukherjee had filed an eviction suit against the petitioner being Other Suit No.33 of 1983. That suit was decreed against the petitioner and one Execution Case being No.6 of 1991 was filed for execution of that decree. The said Execution Case was dismissed for default. The petitioner has claimed that is in possession of that tenanted premises.

It is the further case of the petitioner that on August 27th, 2013 he purchased one decimal of land in R.S.Plot No.3876 from the legal heirs of Bagala Ranjan Mukherjee on consideration. By virtue of that purchase, the petitioner became the owner of undivided one decimal land and became one of the co-sharer of said plot. On June 11,2014 the vendors of the petitioner sold their share in respect of said two plots to the opposite party no.2 and they took possession of the land except the tenanted portion as the petitioner still remained in possession.

Petitioner filed an application under Sections 8/9 of the West Bengal Land Reforms Act against the opposite party on the grounds of co-sharership and vicinage. In that pre-emption proceedings both the parties were directed to maintain status quo in respect of nature, character and possession of the case land till the disposal of the case.

Opposite party initiated a proceeding under Section 144 of the Code of Criminal Procedure before the Sub-Divisional Executive Magistrate (Sadar), Berhampore, District Murshidabad being Case No.2471 of 2014, against the petitioner and the opposite party no.3 who is the elder brother of the petitioner. The said proceeding was disposed of on the basis of a compromise between the present opposite party nos.2 and 3. The petitioner had no knowledge of the said compromise. In the said compromise, it was mentioned that opposite party to that proceeding was unauthorized occupant of the said tenanted portion. As per said compromise the opposite parties agreed to remove the unauthorized structure and in fault the opposite party no.2 would be at liberty to remove the said structure. In the said compromise opposite party no.3 acknowledged the receipt of Rs.50,000/- Thereafter, the opposite party no.2 filed a complaint before the Sub-Divisional Magistrate for a direction upon the Inspector-in-charge, Berhampore Police Station to remove the said structure from the said plot of land . Sub-Divisional Magistrate (Sadar) vide his order dated 22.06.2015 directed the Inspector-in-charge, Berhampore Police Station to provide all necessary police support to the petitioner i.e. present opposite party no.2 to enjoy the suit land by removing every illegal and unlawful encroachment.

Impugned order has been assailed by the petitioner on the ground that the said order was passed by the Sub-Divisional Magistrate ignoring order of status quo passed by a competent Court of law in a proceedings under Sections 8 and 9 of W.B.L.R.Act. Learned Counsel for the petitioner has submitted that the impugned order was passed without ascertaining the actual ownership and possession of the disputed property. He has further submitted that the Sub-Divisional Magistrate exceeded his jurisdiction and passed the impugned order in contravention of the statutory provision. According to his contention the impugned order is not sustainable in law and liable to be set aside.

In support of his contention, the Learned Counsel for the petitioner has cited the decision of Jhunamal alias Devandar Vs. State of Madhya Pradesh and Others reported in SCC Online AIR 1988 Supreme Court 1973. During the course of hearing he has given special emphasis on paragraph 8 of the said judgment. Paragraph 8 of the said judgment is mentioned here:-

" 8.We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] . The ratio of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145 CrPC made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil court. An order made under Section 145 CrPC 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. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached."

On the contrary, Learned Counsel for the opposite party no.2 has invited the attention of the Court to the impugned order and submitted that the impugned order was passed by the Sub-Divisional Magistrate after giving opportunity of being heard to both the parties and considering all relevant factors. He has further argued that the impugned order is a speaking order and there is no ground to interfere with that order.

I have gone through the impugned order and considered the rival submissions of the parties.

From the copies of the order sheets, it appears that the Sub-Divisional Magistrate gave reasonable opportunity of being heard to both the parties and allowed the parties sufficient chance to file their documents in support of their respective cases. From order dated 15.06.2015, it appears that both the parties filed documents in support of their respective cases and both the parties made their respective submissions.

From the impugned order, it transpires that the present petitioner Mahasin Ali had taken the plea before the Magistrate that there was a civil dispute in respect of the land in question and the parties had been directed to maintain status quo regarding nature, character and possession of the said land. The impugned order also reveals that the petitioner to prove his possession document had filed i.e. trade license for carrying business issued by the Prodhan, Radharghat- I Gram Panchayat for the period from 2011-2012 to 2015-2016. The Sub-Divisional Magistrate in his order observed that the said trade license did not mention the plot number. It was specifically observed by the Learned Magistrate that Prodhan, Radharghat-I, Gram Panchayat submitted in writing that no trade licence had been issued in favour of the petitioner in respect of the land in dispute. From the impugned order, it further appears that during the course of hearing, the petitioner himself admitted that he had no right over the suit land and his only submission was that he was carrying on business over the land in dispute for the last five years and he had initiated a case for pre-emption of the land in dispute. Learned Sub-Divisional Magistrate passed the impugned order after observing that Rajib Hossain was the owner of the suit land and there was no stay order of any competent Court of law in respect of the land in dispute.

Annexure-'P1' at pages 22 to 24 are the copies of orders passed in connection with pre-emption Case No.25/2014 initiated by the petitioner. From the copy of the order dated 03.07.2014 at page 22 of the application filed by the petitioner, it appears that the petitioner alleged that the opposite party i.e. Rajib Hossain had been trying to make construction over the case land and to change the nature and character of the case land. On 03.07.2014, an interim order of injunction in the form of status quo was granted and both the parties were directed to maintain status quo as on 03.07.2014 in respect of the nature, character and possession of the case property till 04.08.2014. Thereafter, on 22.04.2015 the Learned Civil Judge directed both the parties to maintain status quo over the case property with regard to nature, character and possession till disposal of the case. From the copies of the orders passed by the Learned Civil Judge in connection with pre-emption application, it does not appear that the petitioner in his application for injunction mentioned that he was in possession of the case land by running his business. On the other hand from page 26 of the application filed by the petitioner, it is revealed that in his application under Section 145 of the Code of Criminal Procedure, the petitioner Rajib Hossain who is present opposite party made specific allegation against petitioner that he had made illegal and unauthorized construction of a tin shed room on the main entrance of the land of the petitioner Rajib Hossain and kept that room under lock and key. As such the petitioner Rajib Hossain could not enter into his land. That means the allegation against the present petitioner viz. Mahasin Ali was that he had made obstruction on the main entrance of the land of the petitioner Rajib Hossain to prevent him from entering into his purchased land.

By the impugned order the Sub-Divisional Magistrate directed the removal of the said unauthorized construction of tin shed on the entrance of the purchased land of the petitioner of the application under Section 145 of the Code of Criminal Procedure. Nowhere in his application under Section 145 of the Code of Criminal Procedure, the petitioner stated that the said unauthorized construction was on his purchase land. The petitioner had approached before the Executive Magistrate to remove the unauthorized structure so that he could enter his purchased land. When the proceedings under Section 145 of the Code of Criminal Procedure was initiated on the allegation of the breach of peace in respect of the dispute with regard to the entry into the immovable property and when the petitioner was being obstructed to enter into his property due to unauthorized obstruction created by the opposite party on the entrance of such immovable property, existence of status quo order passed by the civil Court in respect of the said immovable property did not oust the jurisdiction of the Executive Magistrate to remove such obstruction from the entrance of the said immovable property. The reason is that the entrance is not included in the immovable property in respect of which the status quo order was passed. Apart from, in his application the petitioner himself admitted that the opposite party got the possession of the land in dispute after purchase.

For these reasons mentioned above, it can be said that the Sub-Divisional Magistrate rightly passed the impugned order. The question of interference with the impugned order does not arise at all.

The present application is devoid of merit and stands dismissed. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.