Rajasthan High Court - Jodhpur
Bhanwaru Khan & Ors vs State & Anr on 15 September, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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CRIMINAL REVISION (CRLR) No. 457 of 2011
PETITIONERS:
1. BHANWARU KHAN S/O CHHOGEY KHAN,
2. VALI KHAN S/O CHHOGEY KHAN,
3. SADIQ KHAN S/O CHHOGEY KHAN,
4. SALIM KHAN S/O CHHOGEY KHAN,
5. IDU KHAN S/O CHHOGEY KHAN,
ALL BY CASTE MUSLIMS, RESIDENTS OF VILLAGE
RABARIYA, TEHSIL & DISTRICT JODHPUR.
6. SMT. SHANTI DEVI W/O JEEYARAM,
7. SMT. CHANDU DEVI (BABU DEVI) W/O KISHNA RAM,
8. SMT. SAMMU DEVI W/O BHANWARA RAM,
ALL BY CASTE BISHNOIS, RESIDENTS OF VILLAGE
BHATELA PUROHITAN, TEHSIL SHERGARH, DISTRICT
JODHPUR.
VERSUS
NON-PETITIONERS:
1. STATE OF RAJASTHAN
2. SHIV DAN RAM S/O MAGNA RAM, BY CASTE BISHNOI
RESIDENT OF VISHNU NAGAR, TEHSIL SHERGARH,
DISTRICT JODHPUR.
3. MANOHAR SINGH S/O SUMER SINGH
4. KISHAN SINGH S/O SUMER SINGH
5. MOHAN SINGH (WRONGLY WRITTEN MANOHAR
SINGH) S/O SUMER SINGH
6. ANOPRE SINGH S/O SUMER SINGH
ALL BY CASTE RAJPUTS, RESIDENTS OF VILLAGE
DUGAR, TEHSIL SHERGARH, DISTRICT JODHPUR.
7. MOHAN RAM S/O BHAVA RAM, BY CASTE BHAT,
RESIDENT OF VILLAGE DUGAR, TEHSIL SHERGAHR,
DISTRICT JODHPUR.
Date of Judgment : 15.9.2016
HON'BLE MR. GOVERDHAN BARDHAR,J.
MR. PN MOHANANI, for the Appellant / Petitioner
MR. RK BOHRA, PP, for the Respondent
MR. BK MEHAR
MR. CR JAKHAR
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JUDGMENT
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This revision petition has been filed against the order dated 23.11.2010, passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur (hereinafter "the revisional court") whereby the learned revisional court while allowing the revision petition of respondent No.1, has set aside the order dated 19.05.2010 passed by the Sub-Divisional Magistrate, Shergarh (hereinafter "SDM") and remanded the matter to the learned SDM with the direction to make inquiry under Section 145(4) Cr.P.C. after giving opportunity to both the parties to produce their documentary evidence and pass order afresh in accordance with law.
Counsel for the petitioners has argued that the learned Magistrate after hearing the parties and after perusal of proved documentary evidence and judgments/orders of various revenue courts concluded that the Revenue Board, Ajmer vide its judgment 04.04.2006 has decided that the disputed land is in the ownership of Chanda Singh etc. The learned SDM has further concluded that there is no breach of peace and if there is any, the proceeding under Sections 107, 116, 151 Cr.P.C. may be instituted. The learned SDM has further ordered that the possession of attached land be given to the bona fide purchasers/khatedars. Learned counsel further argued that non- petitioner No.2, who was co-applicant with Sukhram alone filed a revision petition, which is allowed by the lower revisional court. The Board of Revenue, Ajmer is the highest court which has 3 jurisdictional competence to decide the question of title, right to property & entitlement to possession. In view of this, the competent court has decided that the land is neither Agore nor Gochar nor Nadi in the revenue record and it is allotted to the ex-Jagirdar of Dugar in lieu of other land and there are abortive methods of some individuals to debar the allottee by deprivation of the land which is in occupation for more than 30 years. The competent court has also found that the land in question is in occupation (possession) of the allottee Chandan Singh & Ors. Learned counsel further argued that the petitioners are the bona fide purchasers of the land in dispute. The registered sale-deed & revenue record & mutation are in their names. They are in peaceful possession of the land in dispute since 1999 and even they have residential houses & are cultivating the land even today.
On the other hand, counsel for the non-petitioners argued that the revisional court has simply remanded the matter as the findings of the learned SDM are not correct. The petitioners failed to prove their possession or entitled to possession over the land in dispute before the learned SDM. The findings of the learned SDM are palpably wrong.
Heard the counsel for the parties and perused the impugned order dated 23.11.2010, passed by the revisional court and also gone through the material available on record.
It is settled law that the order of Executive Magistrate passed under Sections 145 & 146 Cr.P.C. is confined only to the 4 factum of possession of property in dispute and the order is temporary in nature and is subject to determination of right and title by the competent court. Vide judgment dated 04.04.2006 the Revenue Board has decided that the disputed land is in the ownership of Chandan Singh & Ors. It is also not in dispute that the Revenue Board has jurisdictional competence to decide the question of right, title or interest of the property in dispute as regards entitlement to possession of the property in question also. The lower revisional court has remanded the matter to the learned SDM with the direction to make inquiry under Section 145(4) Cr.P.C. after giving opportunity to both the parties to produce their documentary evidence and pass order afresh in accordance with law. The petitioners have the opportunity to raise their all objections and place documentary evidence before the SDM.
In view of above, I do not find any ground to interfere in the impugned order dated 23.11.2010 whereby the learned revisional court has remanded the matter to the learned Magistrate.
Both the parties are at liberty to raise all their objections and place documentary evidence before the learned SDM, Shergarh. They are directed to appear before the SDM, Shergarh on 30.09.2016.
The revision petition is disposed of accordingly. Record of the case be sent forthwith to the trial court.
( GOVERDHAN BARDHAR ),J.
ms/-
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