Pawan Kumar Sharma vs R. Mugam and Another

D.R. Deshmukh, J.—This criminal revision is directed against the order dated 21.12.2001; passed by Shri F.L. Unjan, 4th Additional Sessions Judge, Bilaspur in Criminal Revision No. 259/2001 whereby the order dated 22.5.2001 passed by the Sub-Divisional Magistrate, Katghora in proceedings u/s 145 Code of Criminal Procedure declaring that the Applicant herein was entitled to continue in possession of the disputed land till dispossessed in accordance with law was set aside.

Brief facts are as follows:

R. Mugam, the non-Applicant No. 1 herein initiated proceedings u/s 145 Code of Criminal Procedure on 28.10.2000 by making an application before the S.D.M. Katghora that land bearing Kh. No. 53/3 and 54 total area 1.30 acre situated in village Nawagaon, Patwari Halka No. 26, revenue circle Katghora, Tahsil Katghora District Korba was recorded in his name and he had cultivated paddy crop on the aforesaid land which was forcibly cut by Pawan Kumar Sharma the Applicant herein on 28.10.2000. It was alleged that breach of peace was likely. The S.D.M. called for a report from the Station House Officer, P.S. Katghora. On 14.11.2000 the S.H.O. Katghora sent a report that Mara Swami, father of the non-Applicant No. 1 herein, had sold the disputed land to the Applicant herein for a sum of Rs. 13,100/- in the year 1981. Thereafter, the Applicant herein was in possession of the disputed land. The non-Applicant No. 1 herein who resided towards Balaghat returned to village Nawagaon 5 years back and in the year 1999 had sown the paddy crop on this disputed land. The Applicant herein had also sown the paddy crop on the disputed land. The Applicant herein had also sown the paddy crop on the disputed land. The Applicant herein harvested the paddy crop. There was likelihood of breach of peace and preventive action u/s 107 & 116 of Code of Criminal Procedure had been initiated. Upon this, the S.D.M. passed a preliminary order on 14.11.2000 requiring the parties to submit their respective claims regarding the actual possession over the land in dispute.

A report was also called from the Patwari Halka No. 25 who reported on 26.11.2000 that although the disputed land was recorded in the name of Mara Swami, yet Pawan Kumar Sharma, the Applicant herein, was in actual possession thereof since he had purchased the disputed land on 10.09.1981 from Mara Swami for Rs. 13,100/- through an unregistered sale-deed. It was also reported that Pawan Kumar Sharma had sown the crops on the disputed land and since 1994 till date Pawan Kumar Sharma was in possession of the land. Both parties adduced evidence before the learned S.D.M. The learned S.D.M. vide order dated 22.5.2001 found that Pawan Kumar Sharma was in possession of the disputed land since 5-6 years prior to the date of passing of the preliminary order and declared that Pawan Kumar Sharma was in possession over the disputed land and ordered that he shall not be dispossessed otherwise in accordance with law.

R. Mugam, the non-Applicant herein, preferred a criminal revision against the order dated 22.5.2001 passed by the S.D.M. before the 4th Additional Sessions Judge, Bilaspur. The learned Additional Sessions Judge without appreciating the evidence adduced by the parties relating to the actual possession over the disputed land and ignoring the report of Patwari and S.H.O. Katghora allowed the revision only on the ground that R. Mugam was the recorded owner of the land in revenue records and since there was no rebuttal of these documents, the order passed by the learned S.D.M. was contrary to law. It also held that Pawan Kumar Sharma did not adduce any evidence to prove that he had purchased the land for Rs. 13,100/- from the father of R. Mugam. In other words, the learned Additional Sessions Judge set aside the order passed by the learned S.D.M. on the basis of the right to possess the subject of dispute by the non-Applicant No. 1 herein.

Shri K.A. Ansari, learned senior advocate for the Applicant has argued that the order passed by the learned Additional Sessions Judge is contrary to law since in proceedings u/s 145 Code of Criminal Procedure the Magistrate is only required to decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1) was in possession of the subject of dispute, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute. He argued that there was overwhelming evidence to show that Pawan Kumar Sharma, the Applicant herein, had cultivated and was in possession of disputed land within two months next before the date on which the report of the police officer was received by the Magistrate. On the other hand, Shri Rajeev Bharat, learned Counsel for non-Applicant has argued in support of the impugned order.

Having heard rival contentions, this revision deserves to be allowed. u/s 145 Code of Criminal Procedure, whenever an Executive Magistrate is satisfied from a report of police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land within his local jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such a dispute to attend his Court in person or by pleader, on a specified date and time to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. A perusal of the record of the Court of S.D.M. clearly shows that upon filing of an application u/s 145 Code of Criminal Procedure by R. Mugam, the learned S.D.M. had called for a report of the S.H.O. P.S. Katghora which clearly showed that there was likelihood of breach of peace between the parties in relation to subject matter of the dispute. The report clearly showed that Pawan Sharma was in possession of the land in dispute since 1981 and since 1991 both Pawan Kumar Sharma and R. Mugam were sowing paddy on the disputed land, although the crop was harvested by Pawan Kumar Sharma. On this report, a preliminary order was passed on 14.11.2000 and the parties were required to adduce evidence relating to the actual possession over the subject of dispute. A report dated 26.11.2000 was also filed by the Patwari which clearly showed that although the subject matter of the dispute i.e. land Kh. No. 53/3 and 54 area 1.30 acres was recorded in the name of Mara Swami, father of non-Applicant No. 1 herein, yet, Pawan Kumar Sharma, the Applicant herein, was in possession over the land. It was also reported that Pawan Kumar Sharma had sown the paddy crop over the disputed land in the year in which the dispute arose. During evidence, Pawan Kumar Sharma, the Applicant herein, examined himself and witnesses Manmati, Santram, Budhram, Hetram and Huleshram whereas the non-Applicant No. 1 herein examined himself and witnesses Saraswati and Natraj. The learned S.D.M. found that the evidence led by R. Mugam, non-Applicant No. 1 herein, was not reliable since there was a serious contradiction in his evidence and application u/s 145 Code of Criminal Procedure In his application, he had mentioned that he had sown Phool Dulari paddy on the disputed land whereas in his statement, he stated that he had sown Byjhul paddy on the disputed land. Considering the evidence led by Pawan Kumar Sharma, the Applicant herein to be more reliable, the learned S.D.M. passed an order on 22.5.2001 declaring the possession of Pawan Kumar Sharma over the land in dispute and further ordering that Pawan Kumar Sharma is entitled to be in possession of the land in dispute till he is dispossessed in accordance with law.

The learned Additional Sessions Judge in para 8 of the impugned order observed that R. Mugam was the recorded as Bhoomiswami in the Khasra Panchshala and Khistabandi Khatonl The name of R. Mugam had been mutated upon the land in dispute after the death of Mara Swami over the land in dispute. These documents had not been rebutted, and therefore, the reliance placed by the learned S.D.M. on the oral evidence was wholly erroneous. On these premises, the learned Addl. Sessions Judge set aside the order passed by the learned S.D.M.

It must be said that the approach of the learned Addl. Sessions Judge was clearly erroneous.

Section 145(4) of Code of Criminal Procedure reads as follows:

145(4). The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any parry has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and 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 his order under Sub-section (1).

A plain reading of the above provision clearly shows that claim of any party to a right to possess a subject of dispute is wholly irrelevant in proceedings u/s 145 Code of Criminal Procedure and before passing an order u/s 145(6), the learned Magistrate is only required to decide whether any and which of the parties was, at the date of the order made by him under Sub-clause (1), in possession of the subject of dispute. The learned Additional Sessions Judge wholly ignored this settled law and also the overwhelming evidence led by Pawan Kumar Sharma before the learned S.D.M. relating to his possession over the subject of dispute. It also ignored the report of the Patwari as also the report of S.H.O. Katghora which revealed that Pawan Kumar Sharma was in possession of the land in dispute on the date of initiation of the proceedings u/s 145 Code of Criminal Procedure Since the right to possess the subject matter of the dispute is wholly irrelevant in proceedings u/s 145 Code of Criminal Procedure, the order passed by the learned Additional Sessions Judge was wholly erroneous and contrary to law. Pawan Kumar Sharma, the Applicant herein, being in possession of the land in dispute was entitled to retain his possession over the land in dispute till he was dispossessed in accordance with law. The impugned order dated 21.12.2001, therefore, deserves to be set aside.

In the result this criminal revision is allowed. The order dated 21.12.2001 passed by the learned Addl. Sessions Judge, Bilaspur is set aside while affirming the order dated 22.5.2001 passed by the learned S.D.M. Katghora.