Patna High Court
Zaffar Khan vs Ram Mahto And Ors. on 23 July, 1984
Equivalent citations: 1984(32)BLJR454
JUDGMENT U.P. Singh, J.
1. By this application under Section 482 of the Code of Criminal Procedure, the order dated 14.1.84 passed by the 3rd Additional Sessions Judge, Palamau and the order dated 16.9.82 passed by the S.D.M. Daltonganj has been questioned. The learned Magistrate converted the proceeding under Section 144, Cr.P.C. to a proceeding under Section 145, Cr.P.C. in respect of the same land which had earlier been decided by a competent Civil Court in favour of the petitioner and the possession in pursuance of the said decree had been effected and delivered to the petitioner.
2. The necessary facts are that in the year 1961 the father of the petitioner purchased the land in question from one Rahiman Bibi by virtue of two sale deeds, dated 24.5.61 and 1.6.61. In the year j964 the delivery of possession was given to the petitioner through the Civil Court in pursuance of a decree passed by it. The disputed property is a piece of land measuring 2 58 acres bearing plots Nos. 1941, 1942, 2276, 2236, 2237, 1972, 1952 and 1954 in village Bari, P.S. Daltonganj.
3. The opposite parties had filed a title suit being T.S. No. 44/64 which was dismissed on 30th March 1968 by the learned Munsif. An appeal preferred against that order before the District Judge in T.A. No. 18/68 also stood dismissed on 18.1.78. Thereafter a Second Appeal was preferred to this Court Section A. 17/78 and that too was dismissed on 9.5.83 and the matter stood finally concluded between the parties. During the pendency of the Title Appeal before the District Judge, the opposite parties filed a petition for starting another Section 145, Cr.P.C. proceeding against the petitioner over the same piece of land. It has already been stated earlier that in the year 1964 a final decree had passed by the Civil Court and the delivery of possession had been effected and the same stood confirmed on 9.5.83 when the Second Appeal was dismissed by the High Court in favour of the petitioner. An application for starting another 145 proceeding over the said piece of land between the same parties had been rejected on 11.11.71 while the second appeal was pending in the High Court, another attempt was made by the opposite parties and a proceeding under Section 144, Cr.P.C. was yet started on 20th July, 1982 The petitioner-first party then approached the local police claiming that since their legal possession was being disturbed at the hand of the opposite parties, it would be just and proper in the interest of justice that Section 107, Cr PC. proceeding be started against the opposite parties. Instead of taking this recourse and steps for binding the opposite parties under Section 107, Cr.P.C. preventing them from causing breach of peace a fresh proceeding under Section 144 was started and converted into a proceeding under Section 145, Cr.P.C. by the sub-divisional Magistrate on 16.9.82. The revision preferred against that order was dismissed by the learned Sessions Judge on 14.1.84 and therefore those two impugned orders are questioned in this application.
4. It was urged on behalf of the petitioner that delivery of possession of the landed property in question had been effected in their favour by a competent Civil Courts and they continued in possession and as such the opposite parties had no right to go over the said lands and even while the Second Appeal was pending before the High Court d awing of another proceeding under Section 145, Cr.P.C. was unjustified and if the opposite parties were determined to cause breach of the peace they could have been prevented under Section 107, Cr.P.C.
5. Considering the facts and circumstances of this case, it is obvious that the opposite parties having gone to the Civil Court several times and lost their claims were frustrated in their attempts and wanted to disturb the possession of the first party in a high-handed manner. It was the duty of the Magistrate to see as far as possible that the decision of the Civil Court and the decree passed by it were maintained. The decree of the Civil Court must be respected and the forcible attempt of the opposite parties in disturbing the possession of the first party in disobedience of the order of the Civil Court ought to have been presented by taking recourse to an immediate proceeding under Section 107, Cr.P.C. The Magistrate or the learned Sessions Judge ought to have considered that the parties had already fought out a litigation in the Civil Court and any disobediance of the said order would encourage the defiance of the decree and paralyse the administration of justice. Present action taken by the Magistrate amounts to putting a premium upon the high-handed and unlawful activities of the opposite parties. It was not open to the magistrate to choose to proceed either under Section 107, or under Section 145, Cr.P.C. arbitrarily. He should have followed the judicial principles. If it is found as in the present case that the question of title and possession had been decided finally by a competent Civil Court and further that the conditions of the parties were such that no reasonable mind would be in doubt as to which of the party was in possession, then it would be a case for action under Section 107, Cr.P.C. In the facts and circumstances, the opposite parties were indulging in mere pretence. In this case the Magistrate has disregarded the decree of the Civil Court. It was conclusive as to the rights of the parties, to be in possession of the properties in suit If the rightful owner of the property to be in possession of the disputed property be driven to the litigation in this way, perhaps, there will be no end of it for every body in the village one after the other will come forward to dispute his right. There must be finality some where and if the Magistrate had realised his duties and done it properly in following the Civil Court's precepts and maintained the possession of the property, the matter would have come to an end. Whether material before the Magistrate were sufficient to take action under Section 107, Cr.P.C. will have to be decided in the facts of each case. In the facts of this case, there is no doubt that the claim of the opposite parties was a mere pretence and in fact there was no dispute bonafide of otherwise and, therefore, a proceeding under Section 107, Cr.P.C. could be started against the opposite parties.
6. In the facts and circumstances of the case, the order dated 16.9.82 passed by the S.D.M and the order dated 14.1.84 passed by the learned Sessions Judge, in revision are quashed and set aside. Accordingly this application stand, disposed of at the admission stage.