Smt. Bhoori and Another vs Mohan Lal and Another

M.B. Sharma, J.—This revision is directed against the judgment dated January 23, 1985 of the learned. Sessions Judge, Sikar. Challenging the aforesaid order the learned Counsel for the petitioners has raised two-fold contention that the revision petition before the learned Sessions Judge against the order dated September 27, 1982 was not maintainable and the properties in dispute measuring 4 bighas and 10 biswas comprising in Khasra No 377 was attached and the learned Magistrate ordered to hand over the possession of that land to the petitioner who was in possession of the same on the date of preliminary order or two months prior to it and the said order was upheld by this Court. The revision petition relates to the land measuring 4 bighas 10 biswas, out of khasra No. 377 messuring 15 bighas and 18 biswas situated in village Losal. The Station House Officer of the Police Station Losal filed a report before the Executive Magistrate that there was a dispute in respect of possession on the aforesaid land and it was likely to break the peace. On receipt of the complaint, the Sub Divisional Magistrate being satisfied that there was a dispute in respect of the possession of 4 bighas 10 biswas of the land having the boundary in North there is a play-ground, in South field of Sualal Mahajan, in East field of Jairam Chhipa and in West field of Diliya Motida Sansis. The learned Magistrate made the preliminary order Under Sub-section (1) of Section 145 Cr. P.C and consequent upon it ordered that the subject matter of dispute be attached which was attached and ultimately the learned Magistrate after inquiry under his judgment dated January 30, 1983 decided the case in favour of Smt. Bhoori and held that she was in possession of the land in dispute and he also restrained the non-petitioners from interfering with the possession of Bhoori and directed the tehsildar that possession be handed over to her A revision petition was filed against the aforesaid order before the learned Addl. Sessions Judge who under his order dated March 13, 1975, made a reference to this Court and this Court under its order dated September 20, 1976, dismissed the reference and as a result of the order of this court the order of the learned Magistrate u/s 145 Cr P.C declaring the Smt. Bhoori was in possession of the land on the date of preliminary order or within two months immediately prior to that order was restored.

After the aforesaid decision of this Court the proceedings were initiated before the the learned Executive Magistrate for restoring the possession of the property in dispute to Smt. Bhoori and it appears that some dispute was raised in respect of the identity of the land. The learned Magistrate directed the Naib Tehsildar to go on the post and make report. It appears that there was some confusion before the Tehsildar in respect of possession over a part of the land which was to be restored and, therefore, the Tehsildar sough clarification from the Executive Magistrate. It appears that the Naib Tehsildar was asked to make an inquiry and he sumbitted a report under which he said that the property which was attached and was subject of dispute was ABCD as shown in site-plan which is available in the file of the trial court. Agreeing with the report of the Naib Tehsildar, the learned Executive Magistrate ordered that the possession was given to Mst. Bhoori and it appears that the possession was given to Bhoori. But objection was raised by Mohan Lal in respect of report of the Naib Tehsildar and the learned Magistrate under his order dated September 27, 1982 dismissed the application of Mohanlal. It may be stated that revision petition against the order under which the objection petition filed by Mohanlal was dismissed was not maintainable. It will appear from a bare perusal of the Naksha Najri that there is no dispute that portion ABCD is common and the only dispute is in respect of portion PNCD and BTLN. According to Mohan Lal the land BTLN along with ABCD was attached whereas according to Mst. Bhoori the portion PNCD along with ABCD was attached. If the boundaries as given in the preliminary order are compared, there can be no doubt that it was ABCD and PNCD which was in dispute and was attached.

Consequently, it can be said that the proceedings were in respect of portion of land marked ABCD and PNCD and it was that land which was attached. Even if there was some mistake in respect of the identity of the land, the proceedings u/s 145 Cr.P.C. having been culminated in favour of Mst. Bhoori and that she was shown to be inpossession of that land on the date of preliminary order, she was entitled to possession of this land.

Consequently, I hereby allow this revision petition and set aside the order of the learned Sessions Judge dated January 23,1985 and restore that of the learned Magistrate. The possession bas already been delivered to Mst. Bhoori and Janki under the orders of the Magistrate. It may be said that the civil suit is said to be pending in between the parties. The rights of the parties will be decided in that suit.