Parag Bai (Smt.) vs Teekam Singh and Another

Dhirendra Mishra, J.—This criminal revision is directed against the order dated 26-9-2007 passed in Criminal Revision No, 237/2005 whereby learned 10th Additional Sessions Judge (FTC), Durg allowing the revision preferred by respondent No. 1 has set aside the order dated 27-7-2005 passed in Criminal Case No. 1320/2000 by the Sub-Divisional Magistrate, Durg and remitted the matter to the Sub-Divisional Magistrate after recording a finding that the respondent No. 1 was in possession of the disputed land on 9-10-2000 i.e. the date of passing of the preliminary order. Briefly stated facts, necessary for decision of this revision petition, are that the Station house Officer, Dhamdha filed Istgasha u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) mentioning therein that because of dispute with respect to the possession of the disputed land situated in village Bhata Kokadi, there is a tension between the petitioner and the respondent No. 1 which may result in breach of peace. After passing the preliminary order u/s 145 (1) of the Code, notice was issued to the parties. An application was filed by respondent No. 2 u/s 146 of the Code which was rejected by the Sub-Divisional Magistrate vide order dated 30th October, 2000. The respondent No. 1 preferred Criminal Revision No. 297/2000 against rejection of his application u/s 146 of the Code, however the revision was also dismissed by the 4th Additional Sessions Judge, Durg vide order dated 14-3-2001.

The petitioner in her written statement averred that she purchased the disputed land from its owner Salik Ram vide registered sale deed for consideration of Rs. 7,000/- on 3-4-1974. She got her name mutated in the revenue record and since then she is in possession. She has also affected sale of some part of the land. In the relevant year also, she had sown paddy and other crops in her land and had harvested the crop. The original owner of the land was her maternal grand-farther and she is in possession of the same by virtue of the sale deed executed by her maternal grand-father Salik Ram Lodhi. The Respondent No. 1 made a false claim by way of filing a petition before Tehsildar, Dhamdha that he and the petitioner and his other brothers are successors of Salik Ram Lodhi who died in the year 1995 and his lone successor daughter Jhoonabai died in his lifetime and the petitioner has wrongly got entered her name in the revenue records. She gave half share of the land before the Panchas of the village and, therefore, his name should also be recorded as joint owner and the proceedings are pending before the Tehsildar.

The respondent No. 1 Teekam Singh in his reply claimed that he was adopted by his maternal grand-father Salik Ram and maternal grand-mother Thanwarinbai since his childhood as son. He was managing the disputed land since their lifetime and even after their death he is in possession. The petitioner got the sale deed executed in the year 1974 from Salik Ram without paying any consideration to them fraudulently, however the execution of the sale deed was kept secret and Salik Ram remained in possession during his life time. Respondent No. 1 was managing the land for the last 25 years and as such he is in possession of the land. In the year 2000 also, he had cultivated the land. The land was partitioned between the parties equally in the year 1975 by Salik Ram and Thanwarinbai in the presence of Panchas with the consent of both the parties and since then both the parties are in possession of their respective shares. In Khasra Entry for the year 1982, the possession of Teekam Singh has been recorded however after passing of the preliminary order, the petitioner forcibly obtained the possession of the disputed land.

Petitioner Parag Bai examined herself, her witnesses Firanta, Madan, Tirathram, Netram, Dhanesh Kumar and Kharbadan whereas respondent No. 1 Teekam Singh examined himself and Dhan Singh.

FINDINGS OF THE SUB DIVISIONAL MAGISTRATE

(i) Admission of Parag Bai before Tehsildar regarding possession of the disputed land for the last 15 years is regarding possession as a share cropper.

(ii) Parag Bai has not been confronted with her earlier statement during her cross-examination.

(iii) Tikam Singh has admitted that he has neither filed batwaranama nor any revenue record regarding separation proceeding except Khasra for the year 1998-99. His possession is not mentioned in the revenue record over disputed land either before the relevant dale or afterwards.

(iv) Sale deed in favour of Parag Bai is admitted by Tikam Singh. Photocopy of revenue record filed by Tikam Singh does not bear entry of partition or his possession.

(v) The witnesses examined by Tikam Singh have not specified the portion of land over which Tikam Singh is in possession.

(vi) From the documents filed by the parties and oral evidence, it has been held that Parag Bai is in possession.

FINDINGS OF THE REVISIONAL COURT

(i) The finding of the Sub-Divisional Magistrate that admission of Parag Bai regarding possession of Tikam Singh for 15 years was in fact as share cropper of Parag Bai is erroneous as it was not her case before the Sub-Divisional Magistrate.

(ii) Parag Bai has admitted in her statement before the Tahsildar that Tikam Singh did not give her part of production till the date she was examined before the Tahsildar, This contradicts her stand that Tikam Singh was in possession as share cropper over the disputed land and accordingly, it has been held that he was in possession over the disputed land independently.

Learned counsel for the petitioner submits that certified copy of earlier statement of Parag Bai before the Tehsildar in the revenue case was neither filed by Teekam Singh nor she was confronted with the same in her cross-examination. However, the revisional Court, relying upon the alleged admission of Parag Bai in the earlier proceedings, has reversed the finding of the Sub-Divisional Magistrate without considering the pleading of the respective parties and ignoring the oral and documentary evidence adduced by them. The case of the respondents Teekam Singh was that the land was partitioned between the parties in the year 1975 and since then both the parties are in possession over their respective shares however the witnesses examined by Teekam Singh regarding possession were not able to specify as to over which land Teekam was in possession whereas the case of the petitioner has been that she was in possession of the disputed land since 1974 on the basis of registered sale deed and her possession is duly recorded. Even in the statement relied upon by the revisional Court, Parag Bai allegedly admitted in the year 1999 that she had given the land to Tikam Singh on share cropping and as such it was a permissive possession.

On the other hand, learned counsel for the respondent No. 1 contended that from bare perusal of sub-section (1) and sub-section (4) of Section 145 of the Code, it would be evident that the only requirement of law to invoke jurisdiction u/s 145 of the Code is that if a dispute exists concerning any land or water or the boundaries which may cause breach of the peace, within his legal jurisdiction, the Sub-Divisional Magistrate after being satisfied himself shall pass preliminary order u/s 145(1). The Magistrate is not required to go into merits of the claims of the respective parties or title to the property or right of possession of the same and he is only required to decide the actual possession of the party on the date of passing the order u/s 145 (1) of the Code and if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within 2 months next before the date on which he received the information from the police or from other sources before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of the order u/s 145 (1). In the instant case, the revisional Court on the basis of statement of Parag Bai has recorded a finding that respondent No. 1 was in fact in possession of the disputed property and accordingly remitted the matter to the Sub-Divisional Magistrate for further proceedings in accordance with law. Reliance is placed on Bharat Singh and Another Vs. Bhagirathi, and Ranbir Singh Vs. Dalbir Singh and Others,

I have heard learned counsel for the parties.

The finding of the revisional Court reproduced hereinabove is based on the earlier statement of Parag Bai before the Tehsildar, Dhamdha in Revenue Case No. 22A/6 of 1997-98. From perusal of the statement of Parag Bai recorded in the instant matter, it is observed that she was not confronted with her earlier statement in her cross-examination. Even respondent No. 1 Teekam Singh has not deposed about any statement of Parag Bai admitting his possession over the land for the last 15 years as share cropper (Adhiyadar), on the contrary his stand before the Sub-Divisional Magistrate was that a partition had taken place between himself and Parag Bai in the presence of Salik Ram, in the year 1975 and since then they are in possession of their respective shares. Whereas the petitioner Parag Bai''s consistent stand is that she is owner and possessor of the disputed land from the year 1974. She had cultivated the land in the year when the proceedings were drawn u/s 145 of the Code and had harvested the crop. The Sub-Divisional Magistrate rejected the application u/s 146 of the Code preferred by Teekam Singh for attachment of the disputed land with a finding that no emergent situation exists warranting attachment. The witnesses examined by respondent Teekam Singh were not in a position to identify as to on which Part of the land, Teekam Singh was in possession. The Sub-Divisional Magistrate, on the basis of documentary and oral evidence adduced by Parag Bai regarding possession and considering the inconsistency in the pleading and evidence adduced by Tikam Singh reached to the conclusion that the petitioner Parag Bai was in possession of the land.

Whereas the revisional Court only on the basis of photocopy of the alleged statement of Parag Bai of the year 1999 before the Tehsildar, Dhamdha available on record has held that Teekam Singh was in possession of the disputed land. From perusal of the record, preliminary order u/s 145(1) of the Code was passed by Sub-Divisional Magistrate on 9-10-2000 on the basis of Istgasha dated 4-7-2000. For the purpose of possession u/s 145 (4) of the Code, the relevant date is within 2 months next before the date on which the report of a police officer was received by the Magistrate and before the date of his order under sub-section (1) of Section 145 of the Code. Thus in the instant case, the relevant date of possession would be two months before 9-10-2000 or at the most two months before 5th June, 2000 the date of incident mentioned in the Istgasha by the Station House Officer, however the revisional Court, on the basis of statement dated 10th February, 1999 of Parag Bai, has held Teekam Singh to be in undisputed possession over the disputed land which is on the face of it erroneous and unsustainable.

In the matter of Bharat Singh (supra), their Lordships in para 19 have held that:-

(19) Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss, 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.

In the instant case, the alleged admission in the form of statement of Parag Bai before the Tehsildar has neither been produced before the Sub-Divisional Magistrate nor the same has been proved. The above statement cannot be termed as admission of possession of Teekam Singh as it mentions that his possession was permissive possession as share cropper. Even otherwise, the alleged admission docs not establish that Teekam Singh was in possession two months before the date of passing of the preliminary order or from the date of incident as mentioned in the Istgasha and, therefore, it is of no consequence.

In the matter of Ranbir Singh (supra), the appellant filed application u/s 145 of the Code, the Magistrate passed preliminary order followed by attachment of the land in dispute. Revision was preferred challenging the validity of the preliminary order passed u/s 145, in these circumstances. Their Lordships held in para 9 that it is not open for the High Court to consider the matter relating to title to and right of possession of property particularly when civil dispute by parties is pending before civil court and question of possession and title can be gone into by civil court.

However, in the instant case the Sub-Divisional Magistrate after considering the pleadings of the respective parties, documentary and oral evidence adduced by them, held that the petitioner Parag Bai was in possession on the date of passing of preliminary order. The above finding has been set aside by the revisional Court and respondent No. 1 Teekam Singh has been held to be in possession of the land on the basis of irrelevant consideration, ignoring oral and documentary evidence available on record. In the light of the aforesaid discussion, the criminal revision is allowed. The impugned order of the revisional Court is set aside and the order of Sub-Divisional Magistrate passed on 27-7-2005 is restored.