Jharkhand High Court
Maheshwar Pratap Singh vs The State Of Jharkhand, The Sub ... on 14 February, 2008
Equivalent citations: 2008(56)BLJR1348, [2008(2)JCR110(JHR)], 2008 CRI. L. J. (NOC) 814 (JHAR.) = 2008 (2) AIR JHAR R 129, 2008 (2) AIR JHAR R 129, (2008) 3 CURCRIR 165, (2008) 64 ALLINDCAS 745 (JHA)
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
ORDER D.G.R. Patnaik, J.
Page 1348
1. In this writ application, petitioner has prayed for issuance of a writ for quashing he order dated 13.6.2006 passed by the 2nd Additional Sessions Judge, Hazaribagh in Cr. Revision No. 06 of 2006, whereby revision preferred by the petitioner was dismissed against the order dated 1.8.2005 passed by the Sub Divisional Magistrate, Sadar, Hazaribagh in Misc. Case No. 42 of 2000 whereby proceeding initiated under Section 147 of the Cr. PC was dismissed.
2. Petitioner has raised following questions of law,
1. Whether the order passed by the Sub Divisional Magistrate dropping the proceeding under Section 147 of the Cr. PC in spite of the evidences on record indicating the disputes between the parties over the right of user of the land, is illegal and without proper appreciation of the provisions of Section 147 of the Cr. PC?
2. Whether the impugned orders passed by the both the courts below are vitiated in law due to error of record?
3. Facts of the case in brief are that a dispute causing apprehension of breach of peace arose between the petitioner and the respondent No. 3 over a piece of land situated, in between the respective houses. A proceeding under Section 144 of the Page 1349 Cr. PC was therefore initiated against them vide Misc. Case No. 42 of 2000. On perusing the show-cause reply submitted by the parties and on finding that the dispute between them is in respect of right of user of disputed land, the proceeding was converted into a proceeding under Section 147 of the Cr. PC by the Sub Divisional Magistrate vide his order dated 5.5.2000 and both parties were directed to file their respective written statements and evidences.
4. According to the case of the petitioner/first party, he had purchased 12 decimals of land by virtue of registered sale deed dated 5.12.1986 in the name of his wife Smt. Krishna Devi from one Kalipado Chakraborty. The lands so purchase have been described by reference to its plot nos. area and boundary. The sale deed records that a piece of land measuring 15 links in width north to south and 40 links width east to west had been left as passage on the southern bound an of the lands purchased by the petitioner. The further case of the petitioner is that the respondent No. 3 / second party had later on purchased 10.65 decimals of land situated adjacent to the land of the petitioner/first party by registered sale deed dated 9.6.1987 from the same vendor and claiming that the piece of land which was originally left as passage, was also sold to him, the second party has wanted to obstruct the passage by raising construction and such act on the part of the second party has led to the dispute.
5. Claim of the second party/respondent No. 3 is that the land in dispute was purchased by him from the same vendor and therefore, he has every right, title and into rest over the same, which cannot be denied and interfered by the first party and he has every right to raise construction over the same.
6. During the pendency of the proceeding, the Sub Divisional Magistrate directed the Circle Officer to conduct an inquiry and submit his report. According to the petitioner, report of the Circle Officer which was submitted on 4.11.2003, clearly indicated that there was a 10 ft wide passage east to west in between the houses of both parties and that the second party had made construction over the passage by raising a room with corrugated sheet roof.
7. Shri P.K. Prasad, learned Counsel for the petitioner, submits that from the report of the Circle Officer as also from the evidences adduced on record as well as from the documentary evidence adduced in the proceeding, it would be appear it that the petitioner / first party had purchased his land first in point of time and at the time of purchase, right to use the passage on the southern side of his land was allowed to the first party which right he has been exercising since the date of purchase on and from 5.12.1986 and the second party has wanted to obstruct the first party's right of user over the passage. Learned Counsel adds further that the findings of the courts below that the second party had purchased the disputed land and had absolute right to utilize the same and that the first party had no right over the said passage, is totally against the weight of evidence on record inasmuch as, the description and dimension of the lands demised under both the sale deeds would abundantly indicate that the passage on the southern side of the petitioner's premises continues to remain as passage and did not constitute any part of the land sold to the second party and, therefore, the impugned orders passed both by the Sub Divisional Magistrate as also by the Revisional Court, are perverse.
Page 1350
8. Counsel for the respondent No. 3 would controvert the grounds advanced by the petitioner as being totally misconceived. Shri Anil Kumar, learned Counsel for the respondent No. 3 submits that the instant writ application is not maintainable at all on account of the fact that no substantial question of law is involved since the matter involves questions of facts and concurrent findings of both of the trial court as well as the revisional court has been recorded on the same. Learned Counsel seeks to explain that the trial court as also the revisional court have considered and relied upon the evidences on record including the sale deed of the second party and have recorded concurrent finding that the disputed land is the absolute property of the second party over which first party cannot advance any manner of right or claim whatsoever.
9. On perusal of the impugned order passed by the Sub Divisional Magistrate it appears that the learned Magistrate has relied upon the sale deed of the second party and has inferred there from that the disputed passage was part of the land sold to the second party and, therefore, the second party being the owner thereof, the first party does not have any right or claim over the passage in question and on such inference, the learned Magistrate has recorded the finding that the claim of the first party dues not come under the purview of Section 147 of the Cr.PC as it is not the case of right of user.
On going through the impugned order of the revisional court, it appears that the revisional court has virtually adopted the finding of the learned Magistrate relying entirely on the sale deed of the second party and concurring with the finding of the learned Magistrate, has observed that it is not a case of right of user and, therefore, the proceeding under Section 147 of the Cr. PC is not maintainable.
10. The above finding of the learned Magistrate as also of the learned revisional court is apparently misconceived and does not reflect proper appreciation of the provision of Section 147 of the Cr. PC vis-a-vis the facts of the case. Both the courts below have failed to take notice of the fact that admittedly, the disputed land situated on the southern boundary of the first party's land was shown as passage allowing the first party a right of user of the passage for egress and ingress to his land and the first party's claim is that since the date of purchase of the land on 5.12.1986, the first-party has been using the said disputed land as passage. Admittedly, the second party came into picture only after purchasing the land adjacent to the land of the first party in June 1987. The first party has claimed that even thereafter, the first party continued to use the disputed land as passage and it was almost three years later when the second party sought to raise obstruction on the disputed land thereon that the dispute arose between he parties. The first party had asserted his right of user of the land and it was prima facie on the basis of such claim that the proceeding was initiated by the learned Magistrate under Section 147 of the Cr. PC. Section 147 of the Cr. PC reads as under:
147. Dispute concerning right of use of land or water. (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.
Page 1351 Explanation. The expression "land or water" has the meaning given to it in Sub-section (2) of section 145.
(2) The Magistrate shall then peruse the statements so put in, hear the parties, received all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of Section 145 shall, so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with he exercise of such right, including in a proper case, an order for the removal of any obstruction in the exercise of any such right:
Provided that no such order shall be made where the right is exercisable at all time of the year, unless such right has been exercised within three months next before the receipt under Sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
(4) When in any proceedings commenced under Sub-section (1) of Section 145 the Magistrate finds that the dispute is as regards an alleged right to user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub-section (1);
and when in any proceedings commenced under Sub-section (1) the Magistrate finds that the dispute should be dealt with under Section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub-section (1) of Section 145.
11. It is Manifest from the above provisions that the Magistrate has only to decide as to whether such right of user does exist in favour of either of the parties claiming the right where claim is made by way of easement or otherwise, and whether such right has been used within three months next before the receipt of information leading to institution of the inquiry. The Magistrate is not called upon to decide the title of any party. From the impugned order, it appears that neither the Magistrate nor the Revisional court has taken into consideration the essential aspects required under Section 147 of the Cr. PC and on the other hand have felt prompted to decide up in the title of the second party over the land in dispute on the basis of the sale deed.
12. Furthermore, it also appears that though, sale deeds of both parties were considered both by the learned Magistrate and also by the Revisional court, but the same have not been scrutinized and compared by reference to the measurement of the land sold to the individual parties by the common vendor in order to make proper assessment as to whether the disputed land did constitute any part of the land sold to the second party.
13. For the above reasons, the impugned order passed by both the courts below i.e. learned Magistrate as well as by the Revisional court are not in consonance with the provisions of law and the findings arrived at by both the courts below are perverse and the same is not sustainable in law.
Page 1352
14. I find merit in this application. Accordingly, this application is allowed and the impugned order dated 13.6.2006 passed in Cr. Revision No. 06 of 2006 by the 2nd Additional Sessions Judge, Hazaribagh, as also the order dated 1.8.2005 passed by the Sub Divisional Magistrate, Sadar, Hazaribagh in Misc. Case No. 42 of 2000 is hereby quashed. The case is remanded back to the Sub Divisional Magistrate to reconsider the matter on the basis of the evidences on record and to record a fresh finding on the issues involved in the dispute.