Nathuni Sah and Others vs Sk. Mohammad Jan and Others

Anand Prasad Sinha, J.—This application is directed against the final order passed in a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code).

The petitioners were the second party and the opposite parties were the first party and the third party in the proceeding. The possession has been declared in favour of the opposite party-first party. It appears that the dispute related to several plots of land having different Khasra numbers and area of different Khata numbers.

Initially a proceeding u/s 144 of the Code had been initiated at the instance of the opposite party-first party. That was on the basis of the police report dt. 13-11-1972. The said proceeding had been converted into one u/s 145 of the Code on 25-1-1979.

The first party (opposite party) had claimed land on the assertion that one Bhutai Sah, who had died about six years ago from the date of the proceeding has left behind him Most. Phuljhari, his widow and Sushila Kuniari, a minor daughter. The properties were self-acquired properties of Bhutai Sah. After his death the property went to Most. Phuljhari. Phuljhari had sold the properties on 5-5-1978 to the first party (opposite party) and since then the first party (opposite party) came in possession. It will be relevant to say that the petitioners Nathuni Sah, Jamuna Sah and Bunni Sah had filed separate written statements each claiming their right, title and interest in the disputed property. Their common case was that the disputed lands were Kasht land of the joint family of the second party (petitioner) and they all were in possession. It was denied that the properties were self-acquired property of Bhutai Sah. On the death of a common ancestor Hazari Sah, the three brothers Butai, Nathuni and Jamuna continued to be joint and Butai Sah had died in the state of jointness with his brothers leaving behind his two wives Most. Berhi and Most. Bagru alias Phuljharia and a son Buni Sah born by Most. Barhi. After the death of Bhutai Sah, there was slate of joint possession of the family members. Most Phuljharia was the second wife and young in age. After the death of Bhutai Sah, Phuljharia had gone to Nepal and had married another man and thus she severed all her connections with the family of her previous husband Butai Sah. Accordingly she had no right to execute any sale deed in favour of the first party in respect of any of the properties of Butai Sah. The sale deed produced by the first party executed by Most. Phuljharia has been described to be forged and fabricated. The second party-petitioners had claimed that the disputed lands were temporarily settled for three years in May, 1977 in favour of various persons, who were the members of the 3rd party in a proceeding u/s 145 of the Code. It appears that the members of the 3rd party had filed their separate written statement in the proceeding u/s 145 of the Code and they supported the case of the second party and claimed their possession in respect of the portion of the lands settled with them.

It will be relevant to mention the genealogical table as indicated by the petitioners which is as follows:

Hazari Sah | _____________________________________________________________________ | | | | Mt.Barhi Butai Sah Nathuni Sah Jamuna Sah Buni Sah = Mt. Bagri It will be also relevant to indicate the parties to the proceeding as indicated in the case, which are as follows: (i) First Party- 1. Sk. Mohammad Jan, 2. Sk. Sahir, 3. Sk. Shamshad. (ii) Second Party 1. Nathuni Sah, 2. Jamuna Sah, 3. Bunni Sah. (iii) Third Party 1. Bhagwan Singh, 2. Binay Kumar Shukla, 3. Kamta Singh, 4. Banbari Lal Chaudhary. 5. Sita Ram Rajgarhia.

learned Counsel for the petitioners has mainly confined his argument on the non-appreciation of evidence and documents in true perspective. Further the claim as put forward by the petitioners has been sought to be supported on the basis that Phuljharia had no right to sell the properties and the state of jointness which existed continued to exist.

Before I enter into discussions of those aspects of the case, I am unable to reconcile with the feelings that if a proceeding u/s 145 of the Code, whose basis is prevention of immediate breach of peace, is allowed to continue for a decade, then as to whether the very fundamental of apprehension of breach of peace can be said to be continuing and existing for such a long time. A proceeding u/s 145 of the Code is distinguishable from the title suit which is a surer test of all the connected issues and just giving a final stamp on the right of the parties settling the disputes primarily once for all.

In the instant case, this proceeding u/s 145 of the Code has been initiated in the year 1972 and that has continued and is continuing without meaningful purpose for such a long time which betrays that, as a matter of fact, the basic structure of a proceeding being apprehension of breach of peace cannot be said to be a ground for a proceeding u/s 145 of the Code which is basically of preventive nature and not punitive in nature, (fan element of possession, in fact, has to be determined, then that deserves to be decided expeditiously as it involves apprehension of breach of peace and preventive measures. In the instant case it appears that the impugned order has been passed after consideration of relevant documents and evidence available in this case. The order has covered all those materials essential for the disposal of the proceeding.

On careful consideration of the impugned order it appears that there has not been such non-consideration or misreading of the documents which may render the impugned order in revision application liable to be set aside. On the contrary, the findings are on the basis of the documents and evidence and, in my opinion, they have been rightly construed and considered for finding of a fact of possession in fact. Of course in a proceeding u/s 145 of the Code the basis for claim of right and possession is a relevant factor, but it would appear that that is not the only factor and thus the finding of possession in fact is distinguishable from the findings and conclusions through the process of title suit.

On consideration of such prolonged proceedings, it becomes necessary to put an end to the matter and if the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference is not advised in the revision application.

In view of the discussions made above, I do not find any occasion for interference with the impugned order and thus this application is dismissed.