Paras Nath Pandey Another vs Deonandan Pandey and Others

V.P. Mathur, J.—This revision is directed against the ''judgment and order passed on 13-3-1986 by Mr. M.P. Singh, the then Sessions Judge, Ballia. The learned Sessions Judge was disposing of Criminal Revision No. 107 of 1985 and he set aside the order passed by Mr. Rakesh Kumar, A.S.D.M. Bansdih, District Ballia passed in Criminal Case No. 49 of 1985.

Briefly stated, the facts are that at the instance of Vijai Kumar Pandey and Paras Nath Pandey proceedings u/s 145 of the Code of Criminal Procedue were started. They came with the allegations that they were bhumidhars in possession of plot No. 60 measuring 7 decimals and of plot No. 48 measuring 6 1/4 decimals in Mauza Janari, P.S. Kotwali, district Ballia. They also contended that the opposite parties namely Deonandan Pandey and others had no concern with these plots, but they were laying claim to the same and since there was an apprehension of breach of peace, action u/s 145 Code of Criminal Procedue may be taken. A preliminary order was passed by the A.S.D.M. on 7-3-1984 and simultaneously he directed attachment of the standing crops. A local lawyer Mr. Paras Nath Lal was appointed Commissioner and was directed to go on the spot and carry out the attachment, and submit his report. Then on 12-4-1984 the revisionists filed a written statement. Their contention was that originally this land was the bhumidhari of Surendra Pandey who transferred the same in their favour and since then they have been in possession and that the attached crop was also theirs, as it had been sown and grown by them. It was also contended that Surendra Pandey had transferred the actual possession of this land also, since he was in possession by virtue of a private partition.

A written statement was also filed by Deonandan Pandey and others and their contention was that the first party was not in sole possession over the property, but that they were co-tenants and since there was no private partition, hence it was a jointly held property.

An application for dropping of the proceedings was moved on behalf of Deonandan and others and it was on the ground that since the parties were in joint possession over the property in dispute, proceedings u/s 145 Code of Criminal Procedure could not be allowed to continue.

The learned Magistrate by his order dated 25-4-85 came to two conclusions. Firstly he held that it was apparent that there was sufficient cause for apprehension of breach of peace in respect of the plots in dispute. Secondly, he held that it was true that the parties were co-owners of the plots as a whole, but so far as the specific portion which was attached on the spot, was concerned, there was Dothing on the record to show that it was also in joint possession of the parties and it was not exclusively in possession of Parasnath Pandey and another. Even with this observation he dismissed the application to drop the proceedings.

A criminal revision being numbered 107 of 1985 was promptly moved by Deonandan Pandey and 2 others and by the impugned order dated 13-3-1986 it was allowed and the order of the learned A.S.D.M. Bansdih dated 25-4-1985 was set aside. The attachment order was quashed and the proceedings u/s 145 Code of Criminal Procedue were dropped.

I have heard the learned Counsel on both sides. I am of the view that both the learned Magiatrate and the learned Sessions Judge took an erroneous view and passed wrong orders. It is undoubted that the plots Nos. 60 and 48 were joint holdings of Chandradip. Jaigovind,j Shishupal, Deonandan, Surendra Nath, Ram Chandra, Sukh Nandan, Chandrakesh and Sripati. This will be clear from the revenue records which have been filed in this case. The entire khata measuring 8.74 acres; but the dispute was only in respect of fraction thereof, precisely speaking for 7 decimals of plot No. 60 and 6 1/4 decimals of plot No. 48. The khasra extract also showed the names of all the co-owners as being in possession. The question still remains whether inspite of these khasra entries and inspite of the fact that a sale-deed was executed by Surendra Pandey in favour of the present revisionists, the possession of the spot continued to be the joint possession of all the co-owners in respect of the entire land or whether somehow the revisionists came to be in exclusive possession of the area of these plots which was placed under attachment. In the absence of any specific evidence to that effect the learned Magistrate rightly felt that it was not possible for him to decide that point and this point could not be decided at the stage at which it was raised. But immediately after coming to that conclusion he should have passed an order of postponing the disposal of the application for dropping of the proceedings and called upon the parties to adduce evidence in respect of the plea that any specific possession of any party was there on the spot. The mistake in his order lies where he directed the disposal of the petition itself.

The learned Sessions Judge considered all these aspects of the matter. He rightly allowed the revision and set aside the order of A.S.D.M but he was again wrong in directing that the entire proceedings should stand quashed and dropped. This was also not called for. He should have directed the learned Magistrate to direct parties to adduce evidence on the question of possession, so that the Magistrate could decide the question whether the property was still in joint possession; or whether on the specific portion which was attached, the present revisionists had somehow entered into exclusive possession.

Under these circumstances the revision has to be allowed. The order of the learned Sessions Judge passed on 13-3-1986 has got to be set aside and so also a part of the order of the learned A.S.D.M. Bansdih dated 25-4-1985. The matter shall go back to the A.S.D.M. Bansdih with the direction that he will give au opportunity to parties to adduce evidence on the point whether the property in dispute i.e. property which has been put under attachment continues to be in joint possession of the parties; or whether the present revisionists are in exclusive possession over the same. Thereafter on the basis of the findings at which he arrives be may pass an order.

Let this order be communicated to the Court below forthwith so that proceedings are expedited.