Naranjan Singh vs Dalbir Singh S/o Buta Singh and anr.

B.S. Yadav, J.

The facts giving rise to this Revision petition and as disclosed during arguments and from the various orders produced before the learned Sessions Judge, Ferozepur as well as from the impugned order are that an area of land measuring 6 Kanals 13 Marlas comprised in Khasra No. 14/1 of Rectangle 37 was owned by the Central Government. It was purchased by Buta Singh (deceased) and the Tehsildar (Sales) issued the sale certificate on 9th January, 1981 in his favour. That khasra number is divided by a watercourse. Three kanals of land, which is in dispute, out of that killa falls on the western side of the watercourse. The land of Naranjan Singh, present petitioner, adjoins those 3 kanals of land. The dispute arose between Buta Singh and Naranjan Singh over possession over those 3 kanals. Naranjan Singh instituted a suit on 12th October, 1981 against Dalbir Singh (son of Buta Singh) and others praying for the grant of permanent injunction restraining the defendants from interfering with his possession over the land. Interm order about status quo was made on 9th November, 1981. On 9th November, 1981, the Subordinate Judge dismissed the application for the grant of adinterim injunction and vacated the stay order. Against that order Naranjan Singh preferred an appeal in the Court of District Judge, Ferozepur, but he to dismissed it on 4th May, 1962. While the civil litigation was going on, the police presented the calendar under section 145, Criminal Procedure Code (for short the Code), on 26th February, 1982 in the Court of SubDivisional Magistrate Zira, in which Naranjan Singh and his son Jit Singh were arraigned as party No. 1 while Dalbir Singh and his father Buta Singh as party No. 2. During those proceedings the orders passed by the civil court were produced. Party No. 2 also produced Jamabandi for the year 197879 and Khasra Girdawaris for the years 197475 to 198081 in which documents in the cultivation column Buta Singh was recorded in possession of the whole land measuring 6 kanals 13 marls. Naranjan Singh produced copy of khasra Girdawari entry for Kharif, 1981 in which in the cultivation column he was recorded in possession of the disputed three kanals of land. Vide order dated 2nd June, 1982 the SubDivisional Magistrate held that Naranjan Singh of the first party was in possession of the disputed 3 kanals of land while the rest of kill No. 14/1 was in possession of the second party. Against that order Dalbir Singh (Buta Singh having died) filed revision petition before the sessions Judge, Ferozepore, while those proceedings were pending, Naranjan Sing filed an application for correction of the khasra Girdawari entries with respect to those 3 kanals in relation to harvests for kharif, 1980 and Rabi, 1981. Dalbir Singh and others also filed an application for correction of the Khasra Girdwari entries of Kharif, 1981 with respect to those disputed 3 kanals of land. Vide order dated 11th June, 1981 the Assistant Collector, II Grade allowed the application of Naranjan Singh and dismissed that of Dalbir Singh and others. On 19th October, 1981, Naranjan Singh also filed an appeal before the SubDivisional Officer, Zira, exercising the powers of Sales Commissioner. In that appeal Naranjan Singh raised a dispute only regarding the disputed 3 kanals of land and claimed that he was in continuous possession over the land. The Sales Commissioner vide order dated 7th July, 1982 set aside the order of the Tehsildar (Sales) and regarded the case to him for fresh decision on merits. Copies of these order were produced before the Sessions Judge, Ferozepore. However, as those orders had come into existence during the pendency of the civil litigation Session Judge did not allow them to be produced as additional evidence and rejected the application of Naranjan Singh filed in this court for that purpose However it may be mentioned here that against the order dated 7th July, 1982 passed by the Sales Commissioner, Dalbir Singh and others perhaps filed an appeal before the Chief Sales Co missioner. Copy of the order passed by the said officer has not been filed but perhaps it was rejected as the sons, widow and daughter of Buta Singh filed appeal/revision before the Commissioner, Ferozepure Division, against the order passed by Chief Sales Commissioner and the sales Commissioner. The said officer vide order dated 12th April, 1983 stayed the implementation of the orders passed by the Sales Commissioner and Chief Sales Commissioner as well as the pending in the lower court till 23rd May, 1983, which was the next date fixed in the case before him. The sessions Judge accepted the revision petition, filed by Dalbir Singh in the instant case, on 10th April, 1983 and held that Buta Singh (deceased) and his son Dalbir Singh were in possession of the land in dispute within two months of the institution of the proceedings and they were entitled to be restored the possession. Feeling aggrieved against that order, Naranjan Singh has filed this revision petition in this Court on 27th April, 1983.

The learned counsel for the petitioner argued that enquiry under section 145 of the Code is limited only to the question as to who was in actual possession on the date of the preliminary order irrespective of the title to the parties. He further argued that the learned Sessions Judge has taken into consideration the sale certificate granted to Buta Singh. There is no dispute as far as the proposition of law is concerned but the learned Sessions Judge has taken into consideration the sale certificate, only for holding that the authorities must have verified the factum of possession of Buta Singh over the disputed land before making the transfer in his favour. The sale certificate was not taken into consideration by the Sessions Judge for holding that Buta Singh was the owner of the disputed land.

It was next argued that the SubDivisional Magistrate had given a finding of fact to the effect that Naranjan Singh was in possession of the disputed land and the mistake in the Khasra Girdawari entries was subsequently corrected by the competent authority. As for as the order regarding correction of khasra Girdawari entries is concerned, it came into existence after the institution of the proceedings. In fact, it had come into existence even after the SubDivisional Magistrate passed the order holding Naranjan Singh in possession of 3 Kanals of land in dispute.

As far as the finding of the SubDivisional Magistrate about the possession of Naranjan Singh over the disputed, land is concerned, it is vitiated by an error on a point of law. Chanda v. Ram Chander, 1980 PLJ 561 (Pb, & Hr.) was cited before him and he did notice the observations made in that case to effect that where possession of the party is established in the earlier Jamabandi entry, and the latter Khasra Girdawari entries cast a doubt on the possession of the party in possession for no rhyme or reason and are unsupported by an document, mutation or order of competent officer effecting the change, presumption of truth attached to the earlier jamabandi entries remains unrebutted. In spite of those observations the said officer ignored the entries existing in the jamabandis for the year 197879 and the entries in the Khasra Girdawari for the years 197475 to 198081 and preferred the entired in the Khasra Girdawari produced by Naranjan Singh. In the order of the SubDivisional Magistrate it has been further mentioned that Khasra Girdawari entries from kharif 1979 to kharif 1981 were in the name of Naranjan Singh, However, that fact is incorrect. The name of Naranjan Singh appeared for the first time in the khasra Girdawari entries in kharif 1981. As noticed earlier, he himself had filed an application for correction of the Khasra Girdawari entries for the harvests of kharif 1980 and Ravi 1981 which was allowed subsequent to the order passed by the SubDivisional Magistrate. In such circumstances the finding of fact arrived at by the SubDivisional Magistrate is vitiated by misreading of evidence.

The learned counsel for the petitioner next argued that the Sessions Judge has remarked that when Naranjan Singh had failed to get injunction from the civil Court he had maniuated with the Police Officer for the initiation of the proceedings under section 145 of the Code. He argued that the calendera was presented while the appeal was pending before the District Judge against the dismissal of the application for the grant of adinterim injunction by the trial court and the pendency of those proceedings did not debar the police from initiating proceedings under section 145 of the Code. In support of his contention he has cited Jia Lal v. The Sub Divisional Magistrate and another, 1978 CLR 44 (Pb,. & Hr.). and Mohinder Singh v. Shri Dilbag Rai, 1976 PLR 803 (Pb. & Hr.). There is no dispute with the legal proposition laid down in these authorities. However, these authorities only lay down that a person in whose favour an ad interim injunction has been granted can institute proceedings under section 145 of the Code to protect his possession. In the present case Naranjan Singh''s application for the grant of ad interim injunction had been dismissed by a civil court before the proceedings under section 145 of the Code were instituted. The civil court must have given a prima facie finding hat Naranjan Singh was not in possession of the disputed land. That finding was binding on the SubDivisional Magistrate who entertained these proceedings.

The learned counsel for the petitioner has cited Smt. Nirmala Kanta v. Mulkh Raj Kohli and another, AIR 1977, Allahabad 145 to show that the observations made in proceedings for the grant of ad interim injunction have no relevancy whatsoever at the time of passing the final verdict after the trial of the suit. I do not understand for what purpose this ruling has been cited. Of course, the civil suit has still to be decided finally but in the instance cas we are concerned with the proceedings under section 145, Criminal Procedure Code, before the institution of which the competent civil court has given a prima facie finding to the effect that Naranjan Singh was not in possession of the disputed land. In my opinion in porceedings under section 145 of the Code, such prima facie findings of a competent court cannot be ignored. I may also quote here Asa Singh and others v. The State of Punjab and others, (1983(1) Recent Criminal Reports 492) 1983(2) CLR 197 wherein the learned Judge has remarked as follows :

"Two dates are relevant. The order of status quo regarding possession was passed by the civil Court on 21.1.1982 in the presence of the order appointing receiver was passed by the SubDivisional Magistrate on 24.3.1982. In other words, the said order tantamount to disturbing the order of status qua and tends to deprive the parties, whosoever is in possession, of the property in dispute. In this view of the matter, passing of an order under section 146 of the Code would tantamount to an abuse of the process of the Court."

The above observation shows that interim orders passed by the civil court have to be honoured by the Executive Magistrate while dealing with the proceedings under section 145 of that Code. In the present case, as noticed earlier, Naranjan Singh''s application for the grant of ad interim injunction had been rejected by the civil court before these proceedings were instituted.

For the foregoing reasons I do not find any infirmity in the impugned orders passed by the learned Sessions Judge against which this revision petition has been filed. Accordingly, I dismiss this petition. The adinterim order already granted is vacated.