Rajasthan High Court - Jaipur
Smt. Bhano And Anr. vs Babu Singh And Anr. on 1 April, 1998
Equivalent citations: 1998CRILJ4768, 1999(3)WLC131
ORDER Amaresh Ku. Singh, J.
1. By this petition filed under Section 482 of the Criminal Procedure Code, the petitioners have prayed that the order dated 26-4-1991 passed by the Sub-Divisional Magistrate, Hanumangarh in Criminal Case No. 1/1991 whereby it was declared that Babu Singh was entitled to the possession of the disputed prop-erty and the receiver of the property was directed to deliver possession to Babu Singh as well as the order dated 8-5-1991 passed by the Additional Sessions Judge No. 1, Hanumangarh, in Criminal Revision Petition No. 39/1991 be quashed and set aside.
2. It appears from the order dated 18-3-1991 passed by the Sub-Divisional Magistrate, Hanumangarh that the Station House Officer of the Police Station, Sangaria filed a complaint in the Court of the Sub-Divisional Magistrate, Hanumangarh, under Sections 107/151/116(3) and 145 of the Criminal Procedure Code. It was stated in the complaint that there was apprehension of breach of peace and there was a dispute between the parties as to the possession of the property. On 20-1-1991, the Sub-Divisional Magistrate, Hanumangarh, attached the disputed property under Section 146(1) of the Criminal Procedure Code and appointed the Tehsildar, Sangaria to be the receiver of the disputed property. Affidavits were filed for proving the possession of Babu Singh within two months before the filing of the complaint. Bhola Singh, who is the son of Smt. Bhano (petitioner) stated in his affidavit that at the instance of his mother, he agreed to sell the disputed property and after obtaining Rs. 10,000/- as earnest money, delivered the possession of the land to Babu Singh. In his report dated 12-3-1991, the Tehsildar, Sangaria reported that the crop in the disputed field was of Babu Singh. In short, on the basis of evidence produced by the parties, the Sub-Divisional Magistrate held that Babu Singh was in possession of the disputed property within two months of the filing of the complaint and, therefore, he directed that the property in dispute be delivered to Babu Singh.
3. Leela Singh filed the revision petition No. 39/1991 against the order dated 26-4-1991 passed by the Sub-Divisional Magistrate, Hanumangarh. vide order dated 8-5-1991. The learned Addl. Sessions Judge held that since Babu Singh was in possession of the disputed property on 20-1-1991, the date on which the property was attached under Section 146(1) of the Criminal Procedure Code, the order of the Sub-Divisional Magistrate, Hanumangarh, was just and proper and did not suffer from any illegality or impropriety.
4. The learned counsel for the petitioners have submitted that the land in dispute belongs to Smt. Bhano, petitioner No. 1. Babu Singh. non-petitioner No. 1 filed a suit against the petitioner No. 1 for specific performance of contract to sell 6 bighas of land on the basis of an agreement purporting to have been executed by the petitioner No. 1 in favour of the non-petitioner No. 1. According to that agreement, the petitioner No. 1 agreed to sell her 6 bighas of land at the rate of Rs. 15,000/- per bigha and obtained Rs. 10,000/- as earnest money and executed the agreement to sell on 16-7-1989. Later on she obtained another sum of Rs. |0,000/- from the vendee, through her son Bhola Singh and the land's possession was also delivered to the non-petitioner No. 1 by Bhola Singh. Applications for injunction were filed in that suit by the parties. The petitioner No. 1 moved an application praying that non-petitioner No. 1 be restrained from interfering with her possession as the possession of the land had not been given by her to the non-petitioner No. 1. In the application filed by the non-petitioner No. 1, it was prayed that petitioner No. 1 be restrained from transferring the land to another person, the Additional District Judge, according to averments made in the petition filed by the petitioners, partly allowed the application of non-petitioner No. 1 and restrained the petitioner No. 1 from transferring the land to any other person till the final disposal of the suit. The application of the non-petitioner No. 1 was also partly allowed and the non-petitioner No. 1 was restrained from interfering with the possession of the petitioner No. 1. Above order is alleged to have been passed in Civil Misc. Case No. 104/1989 and Civil Misc. Case No. 21/1990. It is also submitted by the learned counsel for the petitioners that the non-petitioner No. 1 filed S.B. Civil Misc. Appeal No. 116 of 1990. Babu Singh v. Smt. Bhano, against the order dated 9-5-1990 passed by the Additional District Judge and that appeal was dismissed by this Court on 20-11-90. It is further submitted by him that Babu Singh got the complaint filed by the Station House Officer of the Police Station under Section 145 of the Criminal Procedure Code and on the basis of that complaint the land was attached under Section 146(1) of the Criminal Procedure Code. It is also submitted by the learned counsel for the petitioners that on 18-3-1991 the Sub-Divisional Magistrate had stayed the proceedings pending before him on the ground that a civil suit was pending in the Civil Court and in revision filed against the order dated 18-3-1991, the Additional Sessions Judge No. 1, Hanumangarh remanded the case to the Sub-Divisional Magistrate with the direction to re-decide the case after hearing the parties.
5. The learned counsel for the petitioner has further submitted that the petitioner No. 1 moved an application on 23-4-1991 before the Sub-Divisional Magistrate, Hanumangarh, praying that she be impleaded as a party but her application was not allowed and the proceedings under Section 145 of the Criminal Procedure Code were dropped and receiver was directed to deliver possession to Babu Singh.
6. The petitioners have not produced before this Court the certified copies of the applications and the orders of the Courts. which have been referred to in the petition filed by the petitioners in this Court. It is, therefore, not possible for this Court to say whether the submissions made by the learned counsel for the petitioners are factully correct. It may be pointed out that every fact, including the orders and Judgments/decrees of the Courts, must be proved by producing the 'best evidence' which may be available, the 'best evidence rule' is one of the most important rules whenever the question of proving a fact arises.
7. It is not disputed that the petitioner No. 1 Smt. Bhano is the Khatedar of the disputed agricultural fields, which she agreed to sell to the non-petitioner No. 1. It is, therefore, prima facie proved that the disputed fields were in her possession, at the time when the agreement to sell is alleged to have been executed. Whether Bhola Singh, son of the petitioner No. 1 was authorised by petitioner No. 1 to obtain a sum of Rupees 10,000/- from the non-petitioner No. 1 and deliver the possession of the lands to him in parl performance of the contract to sell executed by his mother, is a disputed question of fact. If the Addl. District Judge had passed orders as alleged by the petitioners, then those orders would be binding on the parties, who were restrained by the orders of the Court.
8. In view of the facts and circumstances of the case,.Smt. Bhano, petitioner No. 1 was a necessary party to the proceedings instituted in the Court of the Sub-Divisional Magistrate, Hanumangarh, under Section 145 of the Criminal Procedure Code, as it was alleged in the complaint filed by the Station House Officer of the Police Station that Smt. Bhano appointed Sheolal as the holder of her power of Attorney and Sheolal made the attempt to obtain the possession of the disputed land. The principal holder of the land for whom Sheolal was acting, was none else than Smt. Bhano and, therefore, Smt. Bhano was a necessary party.
9. It is one of the well-settled principles in adjudication of disputes that Courts cannot decide the disputes brought before them unless all the 'necessary parties' are impleaded as parties to the suit/case. The reason being that in the absence of necessary parties, the jurisdiction to adjudicate cannot be exercised. Non-joinder of. sary parties is fatal to the proceedings. II" the plaintiff/petitioner fails to implead the necessary party/parties, the suit/petition is liable to be dismissed for the defect of non-joinder of necessary party/parties. The party who avoids impleading necessary party/parties, is not entitled to get any relief.
10. In the instant case, it was brought to the notice of the Sub-Divisional Magistrate that Smt. Bhano, petitioner No. 1 was the khatedar of the disputed lands and that she was the person in possession of the lands when the alleged agreement to sell had been executed by her. She had applied for impleading her as a party. It was, therefore, necessary that she should have been allowed to put up her case so that the question as to who was in possession of the party (property) within two months before the filing of the complaint could be properly decided. It is also evident that the non-petitioner No. 1, who had full knowledge about the civil suit, instituted by him and the orders passed by the Civil Court, deliberately omitted to bring to the notice of the Sub-Divisional Magistrate, the orders passed by the Civil Court. I am, therefore, of the opinion that on account of non-joinder of Srnt. Bhano as a party to the proceedings, grave injustice has been occasioned and the process of the Court has been abused.
11. If it is true that the Civil Court had restrained Babu Singh, non-petitioner No. 1 from interfering with the possession of the petitioner No. 1, then it must be said that so long the injunction issued by the Civil Court was not set aside, Babu Singh could not obtain possession of the disputed property from any person other than Smt. Bhano herself and in any case it would have been his duty to bring to the notice of the Civil Court, which had restrained him, of the fact that he has received the possession from the petitioner No. 1. Possession obtained in contravention of the injunction issued by the Civil Court is no possession in the eye of law.
12. For above reasons, the impugned orders passed by the Sub-Divisional Magistrate, Hanumangarh and the Additional District Judge, Hanumangarh, are hereby quashed and set aside. It is directed that Smt. Bhano, petitioner No. 1 shall be impleaded as a party to the proceedings pending in the Court of the Sub-Divisional Magistrate. She shall be permitted to file her reply and produce here vidence, documentary or otherwise regarding the possession over the disputed property, the litigation pending in the Civil Court between her and Babu Singh, non-petitioner No. 1 and the orders passed by the Civil Court from time to time restraining either or both parties as the case may be. The matter shall be reheard and the orders for delivery of possession to the person entitled to possession under Secton 145 of the Criminal Procedure Code shall be decided afresh according to law.
13. The petition is disposed of accordingly. If possession has been delivered to Babu Singh, the same shall be restored to the Tehsildar, who was appointed as the receiver of the property and the Tehsildar shall keep the disputed property in his possession till the order is passed, as directed hereinafter in this order or by a competent Civil Court, whichever may be earlier.