Gujarat High Court
Kaushikbhai vs Ramanbhai on 8 August, 2008
Author: J.R.Vora
Bench: J.R.Vora
Gujarat High Court Case Information System
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CR.MA/788820/2006 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7888 of 2006
In
SPECIAL
CRIMINAL APPLICATION No. 1060 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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KAUSHIKBHAI
SHANABHAI PATEL
Versus
RAMANBHAI
MATHURBHAI DESAI & ORS
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Appearance :
MR
BS PATEL for Applicant with MRS RANJAN B PATEL
for Applicant
MR MEHULS SHAH for MR GC RAY for Respondent Nos. 1
- 2
MR DIPEN A DESAI APP for Respondent Nos. 3, 4 &
5
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CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
Date
: 06/08/2008
CAV
JUDGMENT :
1. Present respondent No.1 Ramanbhai Mathurbhai Desai and present respondent No.2 Kalidas Ramanbhai Desai, had filed above said Special Criminal Application No. 1060 of 2006 against (i) State of Gujarat;
(ii) District Superintendent of Police and (iii) Police Sub-Inspector, Sankheda Police Station, with a prayer that the petitioners were in possession and occupation of land bearing Survey No. 282, 290, 165 and 255 and a godown and that though they were granted police protection for harvesting the crops standing on the above survey numbers by respondent No.2, but respondent No.3 did not comply with the direction of respondent No.2 to give police protection to the petitioners and, hence, the above petition came to be filed for following reliefs :
12.
(A) to admit and allow this petition;
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondent No.3 to comply and implement the order dated 20.2.2006 to grant police protection to the petitioners in respect of agriculture land survey Nos. 282, 290, 165 and 255 and agriculture godown No. 1039 situated at Bahadarpur village, Sankheda;
(C) during the pendency of this petition, restrain the respondent No.3 not to any manner create hurdles and disturb the physical possession of the agriculture land and property as mentioned in para (B) above; and direct the respondent No.3 to comply the direction issued by respondent No.2, at Ann. `B' Colly.
(D) to grant any other and further relief/s that may deem fit and proper.??
However, this Court disposed of the petition on 27th of June, 2006 with the following order :
?S Heard learned Advocate Mr. Shah for the petitioners and learned A.P.P. Mr. A.Y. Kogje for respondents.
However, this petition can be disposed of with observation and direction that, without prejudice to the civil rights of the parties at litigation, police protection be granted to the petitioners at agricultural land in question for the period of two days as and when as desired by the petitioners and as and when the petitioners make request to respondents No.2 and 3. Amount of expenses for the police protection of two days are at the credit of the State as deposited by the petitioners. However, if the petitioners request for the police protection of one more day i.e. of third day, then the same shall also be provided to the petitioners on their depositing expenses according to law.??
With the above directions and observations, this Special Criminal Application stands disposed of. DS permitted.??
2. It was submitted in the petition that earlier on 2/3 occasions, the petitioners were granted police protection.
3. Thereafter, present petition being Criminal Misc. Application No. 7888 of 2006 came to be filed by one Kaushikbhai Shanabhai Patel and power-of-attorney holder for Sumanbhai Mathurbhai Desai, Bipinbhai Desai and others stating that in the disguise of police protection granted to the present opponents No. 1 and 2, they grabbed possession of the above said survey numbers from the present applicant and others with the aid of the police officers and, therefore, the following prayers were asked for :
8(A) Your Lordships be pleased to call for the order at Annexure B to this application and direct the respondent Nos. 3 to 5 to restore the possession of the agriculture fields bearing revenue survey Nos. 282, 290, 165, 255 of village Bahadurpur and also of the house/godown bearing No. 1039 to the applicants with damages to the applicant, which has been taken away forcefully under the police protection by the opponent Nos. 1 and 2;
(B) Cost of this application may please be awarded;
(C) Your Lordships be pleased to grant such other and further reliefs as may be deemed just and proper in the facts and circumstances of the case.??
4. When this petition was placed before this Court on 26th of July, 2006, following order came to be passed in the present petition :
?S1. Heard learned Advocate Mr. B.S. Patel for the applicant.
2. Notice returnable on 17th of August, 2006. Learned APP Mr. A.Y. Kogje waives service of notice on behalf of the respondents No. 3, 4 and 5. In the meantime, it will be open for the applicant to take all legal steps in respect of civil rights as well as other remedies whatever is available to the applicant. It is clear from the order that by passing the order by this Court on 27.06.2006, civil rights of the parties were not to be affected at all..
Notice was made returnable thereafter and now parties are before this Court.
5. Learned Advocate Mr. B.S. Patel for the applicant in the present Criminal Misc. Application, learned Advocate Mr. Mehul S Shah for respondents No. 1 and 2 and learned APP Mr. Dipen A Desai for respondents No. 3 and 4 were heard at length.
6. In sum and substance, it was submitted by learned Advocate Mr. B.S. Patel that there were civil litigations in the above said property between the parties and the possession of the said property was with Sumanbhai Mathurbhai Desai and Bipinbhai Desai, who are applicants through power-of-attorney-holder in this petition and since the possession was disputed, earlier no police protection was granted to the present Opponent Nos. 1 and 2, Opponent Nos. 1 and 2 persuaded the police authorities to give police protection and under the police protection, Opponents No. 1 and 2 have encroached upon the agricultural lands on which the opponents No. 1 and 2 dispossessed the applicant, which is abuse of process of law and it is required to be viewed seriously because a fraud is committed upon the court after not stating the correct facts of the litigations between the parties and, therefore, it is submitted that the stay granted by this Court in Special Civil Application No. 5534 of 2004 (Coram:
Hon'ble Mr. Justice K.S. Jhaveri) on 17th of March, 2005 has not been referred by the petitioners in earlier Special Criminal Application No. 1060 of 2006 whereby the present opponents No. 1 and 2 were restrained from dealing with the property in any manner even then Opponents No. 1 and 2 committing fraud upon the court, obtained orders from the court for police protection and in guise of police protection, dispossessed the present applicant from the property in question. Learned Advocate Mr. B.S. Patel submitted to take action against present opponent Nos. 1 and 2 for committing fraud and, therefore, he relied upon following decisions:
in the matter of S.P. Chengalvaraya Naidu (dead) by L.R.s vs. Jagannath (death) by L.R.s and Ors, as reported in AIR 1994 SC 853;
in the matter of U.P. Junior Doctors' Action Committee vs. Dr. B.Sheetal Nandwani and Ors, as reported in AIR 1991 SC, 909;
in the matter of Ramchandra Ganpat Shinde vs. State of Maharashtra and Ors, as reported in AIR 1994 SC 1673;
in the matter of United India Insurance Co. Ltd vs. Rajendra Singh, as reported in (2000) 3 SCC 581;
in the matter of Sardar Amarjit Singh Kalra vs. Pramod Gupta, as reported in (2000) 3 SCC 172;
in the matter of Ram Chandra Singh vs. Savitri Devi & Ors, as reported in (2003) 8 SCC 319; and Rajappa Hanamantha Ranoji vs. Mahadev Channabasappa & Ors., as reported in (2000) 6 SCC 120.
7. As against that, learned Advocate Mr. Mehul S. Shah gave the description of the three litigations between the parties and stated that it is nowhere laid down that the present opponents were not in possession of the property involved nor none of the findings in above three litigations supports the view of the present applicant that they were in exclusive possession of the suit property at any time. Earlier also, police protection was granted to the present opponents to take away the crops. This time, though present opponents paid the amount fully, police failed to give protection, which gave rise to filing the Special Criminal Application No. 1060 of 2006. In litigations above, what appears is joint-possession of the parties about the property. It is submitted that nothing is concealed by the opponents in earlier petition as to take action against them.
8. Learned APP Mr. Dipen A Desai draw attention of this Court to the affidavit filed by Mr. M.K. Gurjar, PSI, Shankheda Police Station, Vadodara (Rural) and stated that the allegations made against the police is absolutely wrong and warrants no relief in favour of the present applicant.
9. This Court has anxiously heard learned Advocates for the parties and has taken into consideration the documents filed before this Court, affidavit filed by Mr. Gurjar, PSI, Shankheda Police Station, affirmed on 28.11.2007, affidavit filed by Kalidas Ramanbhai Desai, Power of Attorney holder of opponents No. 1 and 2, affirmed on 29.11. 2007, affidavit-in-rejoinder of Mr. Kaushikbhai Patel, son of Shanabhai Patel, affirmed on 03.12.2007 and again affidavit-in-reply filed by opponents No. 1 and 2 i.e. Kalidas Ramanbhai Desai, power-of-attorney holder of opponents No. 1 and 2, affirmed on 13.12.2007.
10. Before deciding this application and with reference to relief claimed, it is necessary to refer to three civil litigations took place between the parties and order passed thereon so as to evaluate the contentions raised in this petition by the applicant because it is the categoric contention of the applicant in this petition that he was in possession of the property and was dispossessed in the guise of police protection. Therefore, it is utmost necessary to see whether present applicants were in exclusive possession of the property, so as to be dispossessed under the guise of police protection. From the litigations referred to herein, it would become clear that how and to what extent false and frivolous averments are made by the present applicant in the present petition. Ordinarily this Court would not embark upon inquiry of civil rights into such arena, but when applicant has asked for the relief of restoring possession and to pay damages, that too, as prayed that under the guise of the order of this Court, it becomes the duty of this Court to ascertain that how far the applicant is bona fide in contending as above. Those litigations are as under :
10.1 Regular Civil Suit No. 730 of 1996:
The suit was filed by present Opponents No. 1 and 2 against present applicant and others in respect of land bearing Survey Nos. 290, 255, 165 and 288 of sim of village Bahadurpur, which is the property involved in this petition. The suit came to be filed for permanent injunction to protect the possession of the plaintiffs i.e. present opponents No. 1 and 2 and interim injunction was asked for by the plaintiffs against the defendants i.e. present applicant and others, and the learned Third Joint Civil Judge (SD), Baroda, on 10th of February, 1997, directed to maintain status quo till final disposal of the suit in respect of possession. However, the learned Third Joint Civil Judge (SD), Baroda, observed in the order that parties appeared to be co-owners and co-occupants of the disputed lands and so it was necessary to grant status quo because the suit was filed by the plaintiffs i.e. present opponents No. 1 and 2 on the ground of tenancy. However, against this order, plaintiffs i.e. present opponents had preferred Misc. Civil Appeal No. 76 of 1997 before the court of Assistant Judge, Baroda at Vadodara. Vide order dated 19th of April, 1997, the learned Assistant Judge, Baroda, disposing of this Misc. Civil Appeal, was pleased to set aside the order passed by the Trial Court below Exhibit-5 in Regualr Civil Suit No. 730 of 1996 on 10th of February, 1997 and it was directed that the matter was remanded back to learned Trial Judge for re-writing the order below Exhibit-5. Against this order of the learned Assistant Judge, plaintiffs i.e. present opponents No. 1 and 2 filed Appeal From Order No. 220 of 1997 before this court which was decided on 17th of February, 1998 (Coram: Mr. Justice R. Balia). The Appeal was dismissed and it was directed that the Trial Court to decide the Application Exhibit-5 in said Regular Civil Suit as early as possible by 28th of February, 1998. However, this Court observed that pending final disposal of Application Exhibit-5 by the Trial Court, both the parties shall maintain status quo at site on that day i.e. February 17, 1998. It is submitted that thereafter the learned Trial Judge decided the application Exhibit-5 in Regular Civil Suit No. 730 of 1996 afresh and vide order dated 12.1.1999 was pleased to reject the Application Exhibit-5 for temporary injunction filed by the plaintiffs present opponents No. 1 and 2. Against which, the present opponents No. 1 and 2 being plaintiffs preferred Misc. Civil Appeal No. 42 of 1999 in the Court of Joint District Judge at Baroda, which also came to be dismissed, vide order dated 9th of August, 1999. Therefore, present opponents No. 1 and 2 - plaintiffs of Regular Civil Suit No. 730 of 1996 preferred Civil Revision Application No.1343 of 1999 against the dismissal of Appeal by learned Joint District Judge at Baroda in respect of Application Exhibit ? 5. This Revision Application was disposed of on 6th of May, 2002 (Coram: Mr. Justice D.K. Trivedi). In para-3 of the order passed by this Court, it was observed that when expressing anything on the contentions raised before the court and without going into the order under challenge, the Trial Court was directed to dispose of the suit being Regular Civil Suit No. 730 of 1996 as expeditiously as possible latest by 31st of March, 2003 and till then parties were directed to maintain status quo and the learned Trial Judge was directed not to be influenced of the order passed by this Court. It was observed that without expressing anything on the contentions raised before the court and without going into the order under challenge, the Trial Court was directed to dispose of the suit being Regular Civil Suit No. 730 of 1996 as expeditiously as possible latest by 31st of March, 2003 and till then, parties were directed to maintain status quo and the learned Trial Judge was directed not to be influenced of the order passed by this Court. So, ultimately, in the said suit, interim proceedings of interim relief, the order which prevails today is of status quo. The said Regular Civil Suit No. 730 of 1996 was dismissed for default and thereafter was restored and is still pending with the above said interim orders. About this, there is no dispute between the parties.
10.2 Civil Suit No. 69 of 2002 :
This suit was filed by present applicant in respect of the property involved in this petition in the court of learned Civil Judge (SD), Sankheda against the present opponents for the declaration and injunction, wherein vide Application at Exhibit-5, present applicant and others, who were plaintiffs, had asked for interim injunction to protect their possession of the property which is involved in this petition. However, the learned Civil Judge (JD), Sankheda, vide Order dated 10th of October, 2003 dismissed the application for the interim relief of the plaintiffs i.e. present applicant and others because in earlier suit i.e. in Regular Civil Suit No. 730 of 1996, in respect of the same property, this Court had directed to maintain status quo. However, this suit filed by the present applicant and others was dismissed for default on 31st of December, 2007. There is no dispute about this fact and, therefore, the applicant and others neither carried this suit any further and the suit is dismissed.
10.3 Probate Proceedings:
The learned Third Joint Civil Judge, Senior Division, at Vadodara, in Probate Misc. Civil Application No. 267 of 1996 had granted probate certificate to the present opponent No.1 Ramanbhai Mathurbhai Desai for the land bearing Survey No. 255 and shop bearing No. 1039, survey No. 2061, situated in the market of village Bahadarpur. Both are amongst the property complained of in the petition. This probate certificate was granted on 03rd of May, 2003. This was the probate certificate in respect of a Will executed by one Heeraben Mathurbhai Desai, who died on 31st of January, 1987. However, present applicant and others preferred an application being Misc. Civil Application No.110 0f 2003 before the learned Civil Judge (SD), Vadodara, against the opponent No.1 Ramanbhai Mathurbhai Desai, alleging that the Will which was produced by the present opponent was forged and false and the opponent herein had obtained Probate falsely and, therefore, the injunction was sought against the present opponent by the present applicant and others that present opponent should not proceed further to deal with such probates because they had prayed to cancel the probate certificate and till the application for cancellation of probate certificate was decided, the present petitioner had asked the above interim injunction. Vide order dated 30th of December 2003, the learned Joint Civil Judge (SD) at Vadodara, dismissed the said Civil Misc. Application No. 110 of 2003 filed by the present applicant and others for injunction to restrain the present opponents to deal with the property in pursuance of order of granting the probate certificate. However, the present opponents No. 1 and 2 filed Civil Misc. Appeal against the order passed by the learned Joint Civil Judge (SD), Vadodara, as referred above, being Misc. Civil Appeal No. 158 of 2003, in which the present applicant also filed an Application at Exhibit-5 to grant interim injunction against the present opponents till the final disposal of said Civil Misc. Appeal No. 158 of 2003, to restrain the present opponents to deal with the property in pursuance of the probate certificate granted to them. On 1st of April, 2004 Exhibit-5 Application in Civil Misc. Appeal No. 158 of 2003 was decided by learned Assistant Judge, Vadodara, and it was directed that the present opponents who were opponents in the Appeal also to maintain status quo more particularly in regard to the transfer of property and ancillary proceedings for Survey No. 255 of village Bahadarpur and for property No. 1039 with the village panchayat Bahadarpur and not to disturb the possession of the appellants (present applicants) till the final decision of Misc. Civil Appeal No. 158 of 2003. Against this order, Ramanbhai Mathurbhai Desai present opponent No.1 filed Special Civil Application No. 5534 of 2004 in this Court against the present applicants - Sumanbhai Mathurbhai Desai and Vipinchandra Prabhubhai Desai. On 17th of March, 2005, this Court (Coram: Hon'ble Mr. Justice K.S. Jhaveri) directed the parties to maintain status quo as on the date of the application below Exhibit-5 filed before the Trial Court on 19th of June, 2003 till the final disposal of the application. Paragraphs 4, 5 and 5.1 are required to be noted hereunder of the said order of this Court.
?S4. I have heard the learned Advocate for the respective parties and have perused the relevant record. In my opinion, the contention raised by Mr. Shah is required to be accepted inasmuch as the appellate court ought not to have travelled beyond the prayer which is claimed below application at Exhibit-5. Moreover, in the interest of all concerned, I am of the opinion that prayer (A) below application at Exhibit-5 is required to be granted.
5. In the premises aforesaid, the petition stands disposed of. The order dated 01.04.2004 passed below Exhibit-5 by the learned Assistant Judge, Vadodara, in Misc. Appeal No. 158 of 2003 is quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to costs.
5.1 The trial court shall hear and dispose of the application as expeditiously as possible. It is clarified that the learned Civil Judge (SD) while deciding the application shall keep in mind the fact that earlier application No. 267 of 1996 which was already decided on 30th of April, 2003, the petitioner was wrongly injected. In that view of the matter, the parties are directed to maintain status quo on the date of the application below Exhibit-5 filed before the trial court i.e. 19.06.2003 till the final disposal of the application.??
[Emphasis supplied] 10.3 In this regard, learned Advocate Mr. B.S. Patel attempted to twist the above order as if the status quo directed by this Court was also in respect of possession of the property and not only transfer, etc of the property. In this respect, it must be noted that para 5.1 of the order of this Court will have to be read with reference to para-4, wherein this Court was pleased to observe that contentions raised by Mr. Shah was required to be accepted inasmuch as the Appellate Court ought not to have travelled beyond the prayer which is claimed below Application at Exhibit-5 and, therefore, this Court granted prayer 6(a) below Application Exhibit-5 filed before the Trial Court on 19th of June, 2003. Now, the contentions which this Court accepted in para-4 of the order are noted in para-2 which are as under :
?S2 Mr. Shah learned Advocate for the petitioner has submitted that the respondent has preferred an application before the learned Civil Judge (S.D.), Baroda, being Application No. 110 of 2003 with a prayer that the probate certificate granted in favour of the petitioner should not be given effect to. It was further prayed that on the basis of such probate certificate the petitioner may not damage the interest of the respondent and they may not transfer the properties in question. Mr. Shah has further submitted that the trial court vide order dated 20.06.2003 has directed the parties to maintain status quo qua the probate certificate. Mr. Shah has further contended that the trial court after hearing the application at Exhibit-5 vide order dated 30.09.2003, vacated the earlier order which regard to interim injunction qua probate certificate. Being aggrieved by the said order, the respondent preferred appeal before the learned Assistant Judge, Baroda, being Misc. Appeal No. 158 of 2003, wherein the respondents have prayed for stay of order dated 30.04.2003 passed below Exhibit-5 qua the proceedings relating to probate certificate, wherein the impugned order was passed. Mr. Shah has, therefore, contended that the appellate court has committed grave error while deciding the application and it was travelled beyond the scope of the prayer claimed by the respondents.??
Therefore, vide order dated 17th of March, 2005 in Special Civil Application No. 5534 of 2004 what is granted by this Court by directing to maintain status quo is what is asked by the present applicant in para 6(a) in Misc. Civil Application No. 110 of 2003 accepting the contentions of learned Advocate Mr. Shah, as recorded in para-2 of the order. Meaning thereby that, so far as possession is concerned, status quo to be maintained by the parties prevailing on that day and that observation of Assistant Judge, Baroda, in Misc. Civil Appeal No. 158 of 2003 vide order dated 01st of April, 2004, specially ?Snot to disturb the possession of the appellants till the final disposal of the present appeal?? is travelling beyond the scope. Therefore, though relief claimed in 6(a) below Application at Exhibit-5 is granted by this Court in Order passed on 17th of March, 2005 in Special Civil Application No. 5534 of 2004, but after accepting the contentions of learned Advocate for the appellant i.e. present opponents, in para 5.1 also, this Court was pleased to observed that ?S it is clarified that the learned Civil Judge (SD) while deciding the application shall keep in mind the fact that earlier Application No. 267 of 1996 which was already decided on 30th of April, 2003, the petitioner was wrongly injected?? and ultimately it was directed to maintain status quo.
10.4 Thereby it is clear that in this proceedings, it is nowhere come out that, the possession of property of probate certificate was possessed exclusively by the present applicant and that the direction passed by the lower courts as to not to disturb the possession of the present applicant in respect of property of probate certificate was clarified by this Court in Order passed on 17th of March, 2005 in Special Civil Application No. 5534 of 2004 and it was directed to maintain status quo accordingly.
11. From the above exercise, it has now become clear that the present applicant was not at all in exclusive possession of the properties mentioned in the petition nor it is the finding of any court that present opponents, who filed earlier Special Criminal Application No. 1060 of 2006, was not in possession of the above property. Going through these three proceedings, it appears that, in revenue record, the names of both the parties are appearing as they belong to same family and, therefore, now it is to be ascertained that the averments made by the applicant in the present petition as to the dispossession by the aid of police is how far correct. It is necessary, therefore to refer to the affidavit of Mr. M.K. Gurjar, PSI, Sankheda Police Station, Vadodara (Rural) and to reproduce paras 6, 7, 8, 9 and 10 of the affidavit are as under :
?S6. I say and submit that pursuant to the application dated 29.09.2005 made by the present applicant Kaushikbhai Chhanabhai Patel (Annexure-I to the Misc. Criminal Application No. 7888 of 2006) was made to D.S.P., Vadodara, Rural, requesting that not to grant any police protection to the present opponents Ramanbhai Mathurbhai Desai and Kalidas R. Desai. In the said application, the present applicant had requested that in no way in the direct possession of the land in question any interference or hindrance if it is created by seeking police protection then it may not be granted keeping in to account the present application i.e. dated 29.09.2005.
7. Thereafter the Dy. S.P., S.S.Bhambhore, Dabhoi Division and PSI Damor, Sankheda Police Station after going through the application dated 29.09.2005 has opined that Ramanbhai Mathurbhai Desai and Kalidas R. Desai may not be entitled to get police protection. Annexed hereto and marked as Annexure R-I is the copy of opinion given by both the police personnel. It is submitted that thus there was no police protection at the agricultural field in question till this opinion was in force.
I say and submit that vide Order dated 27.06.2006 this Hon'ble Court has directed in its oral order while disposing of the Special Criminal Application, observed as under :
?SHowever, this petition can be disposed of with observation and direction without prejudice to the civil rights of the parties at litigation, police protection be granted to the petitioner at agricultural land in question for the period of two days as and when as desired by the petitioners and as and when the petitioner makes request to the respondents No. 2 and 3. Amount of expenses for the police protection are at the credit of the State as deposited by the petitioners. However, if petitioners request for the police protection of one more day i.e. 3rd day when the same shall be provided to the petitioners on their depositing their expenses according to law.??
It is submitted that pursuant to the order passed by this Hon'ble Court dated 27.06.2006, the office of D.S.P., Vadodara Rural, Vadodara, dated 13.07.2006 gave police protection for a period of 2 days on 15 and 16 July 2006 as per the application dated 10.07.2006. A copy of the order granting police protection is annexed hereto and marked as Annexure-R-II to this reply.
I say and submit that pursuant to the order of Police Protection dated 13.07.2006 by the Office of D.S.P. that there were four police officers, one Head Constable and three Constables were posted on 15.07.2006 and 16.07.2006 between 8.00 a.m. to 4.00 p.m. I say and submit that at that time, PSI S.D. Damor was In-charge of Sankheda Police Station.
I say and submit that pursuant to the averment made in para-6 to the application that it is denied that applicant was helplessly standing on one side of the agriculture field when the opponents No. 1 and 2 with the help of tractor removed the crops cultivated by the applicant under the police protection. It is further denied that it was in the presence of police officers, all the raw stock lying in the godown has been taken away and the lock of the house has been broken as No.1 and 2 were protected by the order of the Hon'ble Court. I say and submit that there is nothing on record which would show that with the connivance or help of the police officers, the crops at the agricultural field were removed.
9. I say and submit that pursuant to the allegation made by the applicant that agricultural crops, cotton, tuver, and caster oil seeds have been removed which were cultivated in the land in question with the help of tractor under the police protection. It is submitted that it was directed by the Hon'ble Court to grant police protection so that no cognizable offence may take place at the agricultural field. It is the duty of the present opponent to maintain law and order situation so as to prevent any offence being committed. It has been also specifically mentioned in the order that without prejudice to the civil rights of the parties at the litigation, police protection is granted at agricultural land in question. It is submitted that duty of the opponent is to see at the place that there may not be any quarrel or dispute which may turn out to be an offence and for the purpose, police protection has been granted to the applicant and there is order or direction from any of the court that present opponent may be granted to the petitioners at the agricultural lands.
I say and submit that so far the averments and the allegations made against the Opponents No. 1 and 2 i.e. Ramanbhai Mathurbhai Desai and Kalidas Ramanbhai Desai are concerned, it is a dispute between these two parties, which is the subject matter of civil disputes and required to be adjudicated through Civil Courts.
10. I say and submit that there is no fault or deliberate involvement of the police party in helping either party to remove the agricultural crops while implementing the order of the Hon'ble Court. It was in a true spirit and bounden duty to see that any untoward incident may not occur and the orders of the Hon'ble Court has been followed. I say and submit that it would have been proper on the part of the applicant to seek injunction or interim relief against the opponent No.1 and 2 before removing the crops in question which is the pending dispute between them at the agricultural land. Hence, there is no involvement of the present opponent. It is submitted that the dispute about the ownership of the land and their title is a matter of civil dispute where police officer would not be held responsible for any of the act or action by the opponents No. 1 and 2 unless there is a specific direction from this Hon'ble Court or Civil Court.'
12. In view of above, the statements of the applicant that ?Sopponents No. 1 and 2 persuaded the police authorities to get police protection and under the police protection, the opponents No. 1 and 2 have encroached upon the agricultural land, on which the opponents No. 1 and 2 had no possession and the applicant has been dispossessed , which is abuse of process of law and a fraud committed by the opponents No. 1 and 2 with the Hon'ble Court which is required to be strictly viewed?? appears to be utterly false, vexatious and misguiding.
13. It is clear that, it is nowhere laid down that the applicant was in exclusive possession of the property, it is nowhere laid down that the present opponents were not in possession of the property and when parties were litigating for their civil rights and when the protection was afforded as has already been granted by police officers, the claim of the applicant that he was in possession of the property, is utterly false and it is an attempt to obtain relief which could not be granted in civil litigation or it could have been decided in civil litigation.
14. It is pertinent to note that this application is wholly misconceived. The police protection was granted to the opponents in Special Criminal Application No. 1006 of 2006 to their persons and not to the property and this protection was given without prejudice to the civil rights of the parties at litigations. The protection was granted with a view to maintain public peace and to prevent committing a cognizable offence and to the persons of the opponents and not to the property and, therefore, the relief claimed for recalling an order and restoring possession of the agricultural field and the godown with the applicant would not at all arise in this petition because otherwise in any civil litigation, as stated above, nowhere it was laid down that that the petitioner was at any time in exclusive possession of said property.
15. In Criminal litigations, the question of title cannot be gone into and it was therefore not decided in Special Criminal Application No. 1060 of 2006 while granting protection to the persons of the opponents and to prevent the commission of any cognizable offence. In the matter of P.R. MURLIDHARAN AND ORS vs SWAMI DHARMANANDA THEERTHA PADAR AND ORS, as reported in (2006) (R) SCC 501, relied upon by the learned Advocate for the petitioner Mr. B.S. Patel, it is clearly observed that a line is drawn when police protection is afforded or asked in respect of property , status or right which remains to be adjudicated upon, and when such an adjudication can only be got done in a properly instituted civil suit, but that is not the circumstances of the present case. As stated above, to avoid the injury on limbs or body of the opponents at the site, the protection was afforded and nothing beyond that. If at all in guise of the order, the possession, if so believed, of the applicant is encroached upon by the present opponents, dispossessing the present applicant, then the course open is go to the civil court and take proper remedy by the applicant and, therefore, also the question of restoring the possession taken in the guise of the order of the court, is totally a false stand with a view to obtain possession which could not be obtained by the applicant in long dragged civil litigations which are still to be adjudicated.
16. The decisions which the learned Advocate Mr. B.S.Patel for the applicant referred to are the decisions pertaining to the facts of that case, which are not applicable in the facts of the present case.
17. In view of above, the relief claimed by the applicant in this petition cannot be granted though it has been vehemently urged by the learned Advocate for the applicant to take action against the opponents herein for suppressing of the material facts, and that material fact is the possession of the applicant, according to the applicant. However, evaluating the contentions, this Court has gone through the litigating history and has not found anything which indicates that the applicant was at any time in exclusive possession of property involved and, therefore, the question of dispossession of applicant under the guise of police protection and consequently suppression of material fact does not arise at all. On the contrary, it is found that the applicant of this petition has made a total false allegation that in guise of the orders of this court, he was dispossessed with the aid of police, but the police officers only afforded protection to the persons of the opponents and not to the property involved.
17. In this view of the matter, there is no substance in this application and the application therefore stands dismissed. Rule is discharged. It is observed that this is a fit case wherein ordinarily very heavy cost of Rs. 50,000/- should be awarded and saddled upon the applicant but with a view that parties are litigating for the civil rights, no order of costs is made. It is further made it clear that any observations of this order would not come in way of any of the parties to this petition in any civil litigation in respect of the property involved in this petition in any manner.
(J. R. VORA, J.) pnnair Top