M.S. Jamwal vs Om Parkash and others

Kuldip Singh, Judge

This revision has been filed against order dated 21.5.2011 passed by Judicial Magistrate 1st Class, Jawali, District Kangra in Criminal Complaint No. 321-I/2010 for offences punishable under Sections 420, 468 read with Section 34 IPC.

The facts in brief as per petitioner are that the mother of petitioner Smt. Purv Devi is an aged lady, she asked petitioner to accompany her as she was to execute a sale deed in favour of respondent No.2 in respect of land measuring 80 Kanal 18 Marlas situate at Mauja Bahadpur, Tehsil Fatehpur, District Kangra. The petitioner found that papers were prepared by property dealer and the jamabandi was issued by respondent No.1 describing the area as 80 Kanal 18 Marlas. The respondent No.3 was the Tehsildar (Sub Registrar) at the time of execution of sale deed, who asked the petitioner to sign on the sale deed as witness. The petitioner was told that the sale deed was executed in respect of 80-18 Kanals. The petitioner did not doubt the bonafides of respondent No.3.

It has been alleged that petitioner and his mother after execution of the sale deed came to know that respondent No.2 had been put in possession of land 111.27 Kanals by Patwari respondent No.1 after giving demarcation of the land. Kulwant husband of respondent No.2 assured the petitioner that in case possession was found in excess of land, the same would be vacated. The respondent No.2 did not respond to the petitioner''s complaint and on making inquiries the petitioner learnt that respondents No. 1 to 3 in conspiracy with each other to grab excess land had fraudulently held out to the petitioner by means of the jamabandi that an area of 4-13-51 hectares of land is equal to 80 Kanals and 18 Marlas.

The petitioner was not conversant with the conversion table from hectares to Kanals. The petitioner had no cause to doubt and therefore, he appended his signatures on sale deed as witness. It has been alleged that prior to the execution of the sale deed, the mother of the petitioner had executed an agreement to sell in respect of land with respondent No.2 in which area measuring 80 Kanals 18 Marlas (equivalent to 4-13-51 hectares) was agreed to be sold to respondent No.2. In the sale deed, the sold area is mentioned in hectares only. The respondents No. 1 to 3 have put respondent No.2 in possession of 111.27 Kanals under the grab of 4-13-51 hectares by treating it equivalent to 111.27 Kanals on the basis of conversion table.

In the agreement to sell as well as jamabandi issued by respondent No.1 area measuring 4-13-51 hectares has been deliberately mentioned as 80 Kanals 18 Marlas instead of 111.27 Kanals with the sole intention of cheating the petitioner and his mother. In the sale deed, the area has deliberately been mentioned only in hectares and not in Kanals with the sole intention of cheating the petitioner and his mother by transferring an excess area of more than 31 Kanals. The sale deed was executed on 18.1.2010.

The petitioner asked respondent No.2 and her husband to vacate the possession of excess land in accordance with the area mentioned in the sale deed. The petitioner after execution of the sale deed came to know of the fraud, criminal misrepresentation, forgery and cheating being carried out by respondents No. 1 and 3. The petitioner filed the complaint which has been dismissed by the Magistrate on 21.5.2011.

I have heard the learned counsel for the petitioner and have also gone through the record. The petitioner has filed the complaint alleging that his mother and owner Smt. Purv Devi accompanied petitioner upto Fatehpur to sign sale deed in favour of respondent No.2 in January, 2010. It has been stated that on the asking of respondent No.3 petitioner signed the sale deed as witness. In the complaint, it has been stated that respondent No.1 had wrongly given demarcation of 111.27 Kanals instead of 80-18 Kanals by adopting method of wrong conversion from hectares to kanals. The petitioner told Kulwant Singh husband of respondent No.2 that they have trespassed over 111.27 Kanals by trick instead of 80-18 Kanals in connivance with respondents No. 1, 3.

It has been alleged in the complaint that respondent No.1 masterminded criminal mischief to cheat the petitioner. It has been stated that respondent No.2 has criminally trespassed on 31.09 Kanals more than the sold land. In the complaint, prayer has been made for proceeding under Sections 420, 468, 34 IPC and a direction to respondent No.2 to pay mesne profits at the rate of 1000 per Kanal per month till she vacates illegal possession. It has been stated that petitioner is separately moving the Court of District Judge, Kangra for cancellation of sale deed.

The complaint has not been filed by Smt. Purv Devi owner of the land, who sold the land to respondent No.2 vide sale deed dated 18.1.2010. There is no averment in the complaint that petitioner has been authorized by Smt. Purv Devi to file the complaint. A copy of sale deed dated 18.1.2010 Ex.CW-1/A vide which Smt. Purv Devi has sold 4-13-51 hectares land in favour of respondent No.2 has been placed on record. In the sale deed, area has not been mentioned in Kanals. The land which has been sold has further been identified by Khasra numbers in the sale deed.

The petitioner is a retired IAS officer. It is not believable that petitioner could not understand what has been written in the sale deed Ex.CW-1/A. There is no mention in the complaint that petitioner does not understand Hindi. In case respondent No.1 has allegedly given possession of excess land then it is not part of transaction of sale deed dated 18.1.2010. In sale deed Ex.CW-1/A land has not been described as 80-18 Kanals or 111.27 Kanals. A copy of agreement prior to the sale deed has been relied by the petitioner in the revision petition but this document is not part of the trial Court file and therefore, said agreement cannot be considered in revision.

The petitioner is not the owner of the land. Smt. Purv Devi owner of the land sold to respondent No.2 and mother of petitioner has not questioned the sale deed dated 18.1.2010 nor she has raised grievance against handing over possession of alleged excess land to respondent No.2 after the sale deed. I have gone through the complaint, statement of petitioner as CW-1. Smt. Purv Devi has not authorized petitioner to espouse her cause. On the contrary, the petitioner is a witness to the sale deed. The petitioner has no locus-standi to question the legality of the sale deed in presence of his mother Smt. Purv Devi.

The question raised by the petitioner appears to be a dispute of civil nature. He has stated that he is moving the Court of District Judge for cancellation of sale deed. In the complaint, prayer has been made for payment of mesne profits. In jamabandi Ex.CW-1/B for the year 2002-03 and jamabandi Ex.C-1 for the year 2007-08 all khasra numbers are not identical. Khasra No. 1837 mentioned in jamabandi Ex.CW-1/B has not been shown in jamabandi Ex.C-1. Similarly Khasra No. 1789 in jamabandi Ex.C-1 has not been shown in jamabandi Ex.CW-1/B.

Therefore, it cannot be said that aforesaid two jamabandis showing different measurements are exactly of the same land. The petitioner cannot take the benefit of the measurement of land shown in Ex.CW-1/B and Ex.C-1 without explaining the alleged defect in two jamabandis more particularly when in two jamabandis whole of the land is not exactly the same.

The learned Magistrate has rightly appreciated the material on record. There is no merit in the revision and the same is accordingly dismissed.