Delhi District Court
) Malkhan Singh vs ) The State (Delhi Admn.) on 4 December, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS
ROHINI : DELHI
Date of Decision: 04-12-2007
(I) Criminal Revision No. 02 dated 08/01/2007
1) Malkhan Singh
Son of Sh. Kehar Singh
2) Samay Singh (since deceased)
Son of Sh. Kehar Singh
Note: In his place, Vishal and Sanjit allowed to be
arrayed vide order dated 23/3/2005 passed by
learned SDM, Narela, Delhi.
3) Chander Bhan
Son of Kehar Singh
All Resident of : Village Mohammadpur,
Ramjanpur, Police Station Alipur,Delhi.
.................. Petitioners
Versus
1) The State (Delhi Admn.)
2) Smt. Bimla
Wife of Sh. Ram Kumar
3) Smt. Darshna
Wife of Sh. Raj Kumar
4) Smt. Savitri
Wife of Sh. Girdhari
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5) Raj Kumar
Son of Sh. Lal Chand
6) Ram Kumar
Son of Sh. Lal Chand
7) Girdhari
Son of Sh. Lal Chand
8) Liak Ram (since deceased)
Son of Sh. Kanhiya
Note: Applications filed by and on behalf of Amit,
Anil, Aman, Azad Singh & Ranbir Singh, during
pendency of the revision petitions for being
arrayed as party allowed vide order dated
03.11.2007.
All Resident of: Village Ramzanpur,
Mohammadpur, Delhi-110 036.
.................. Respondents
AND
(II) Criminal Revision No. 61/1995
Reconstructed New Criminal Revision No. 36 dated
01/10/2007
1) Liak Ram (since deceased)
Son of Sh. Kanhaiya
Note: Applications filed by and on behalf of Amit,
Anil, Aman, Azad Singh & Ranbir Singh, during
pendency of the revision petitions for being
arrayed as party allowed vide order dated
03.11.2007.
2) Hari Singh
Son of Sh. Desh Raj
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3) Sultan Singh
Son of Sh. Desh Raj
4) Baljit Singh (since deceased)
Son of Sh. Desh Raj
All Resident of : Village Mohammadpur,
Ramjanpur, Delhi.
.................. Petitioners
Versus
1) The State of Delhi through Chief Secretary
(Delhi Administration )
2) Smt. Bimla
Wife of Sh. Ram Kumar
3) Smt. Darshna
Wife of Sh. Raj Kumar
4) Smt. Savitri
Wife of Sh. Girdhari
5) Raj Kumar
Son of Sh. Lal Chand
6) Ram Kumar
Son of Sh. Lal Chand
7) Girdhari
Son of Sh. Lal Chand
8) Malkhan Singh
Son of Sh. Kehar Singh
9) Samay Singh (since deceased)
Son of Sh. Kehar Singh
Note: In his place, Vishal and Sanjit allowed to be
arrayed vide order dated 23/3/2005 passed by
learned SDM, Narela, Delhi.
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10) Chander Bhan
Son of Sh. Kehar Singh
All Resident of: Village Mohammadpur,
Ramzanpur, PS Alipur, Delhi-110 036.
.................. Respondents
JUDGMENT
1. Laws delays is a phenomenon. Unfortunately, these revision petitions pertain to impugned order which was passed about 14 (fourteen) years back, in the proceedings u/s 145 Cr.P.C. Summary procedure has been provided for disposal of proceedings u/s 145 Cr.P.C. keeping in view the urgent matter to be adjudicated by the Magistrate competent to deal with the same. Both these revision petitions have been preferred against order dated 27/08/1993 passed by Sh. S. S. Sidhu, learned Sub Divisional Magistrate, Kingsway Camp, Delhi. The impugned order was passed in proceedings against under Section 145 Cr.P.C. in case no. 9/3/99 titled as State Vs. Malkhan Singh & Others. Vide the impugned order, the learned Sub Divisional Magistrate directed for delivery of possession of the land in dispute to respondents no. 2 to 7 and at the same time directed them to -:5:- pay the sale proceed of the crop for Rabi 1993 to these respondents.
Criminal Revision No. 2/07 has been filed by Malkhan Singh & Ors., whereas other Criminal Revision No. 61/1995 has been filed by Liak Ram, challenging the impugned order.
Consequent upon death of Liak Ram petitioner, some applications were filed for their substitution as legal representatives. Vide order dated 23.3.1996 the case was ordered to be sent back to the learned Sub Divisional Magistrate for decision of the applications for substitution of the legal representatives of the Liak Ram.
Separate application was also filed by Hari Singh, Sultan Singh, Anil Singh and Amit Kumar through Smt. Shakuntala with request to bring them on record as legal representatives of Liak Ram. Another application was filed by Smt. Bimla, Smt. Darshna and Smt. Savitri for being brought on record as legal representatives of their father Liak Ram. Similar, applications were also filed by Ranbir Singh and Azad Singh.
Vide order dated 23/03/2005, learned Sub Divisional Magistrate allowed the application of Vishal and -:6:- Sanjit son of Samay Singh and both of them were impleaded as party in place of Samay Singh.
As regards the other applications filed by the aforesaid persons in the proceedings for their impleading as legal heirs of Liak Ram, the learned Sub Divisional Magistrate made certain observations and sent the case back to the Hon'ble Court of Session for passing the appropriate order.
2. All applicants are arrayed as parties to afford them reasonable opportunity of being heard in the revision petitions Vide order dated 03.11.2007, all the applicants, namely, Aman Singh, Amit Singh, Anil Kumar sons of Baljeet Singh (since deceased), Azad Singh and Ranbir Singh were allowed to be arrayed as parties in both the revision petitions as Sh. Anil Dagar, counsel for Hari singh and Sultan Singh, Sh. Raj Kumar Sehrawat, counsel for respondents No. 2 to 7, Sh. Preetjeet Singh, counsel for Ranbir Singh, Sh. B.P.S Tyagi, counsel for Azad singh and learned Additional Public Prosecutor for the State-respondent, were in agreement that all the applicants, whose applications are on record for their impleadment as parties to the revision petitions, on account of -:7:- death of Liak Ram be arrayed as parties.
It may be mentioned here that Smt. Bimla, Smt. Darshana, Smt. Savitri, Hari Singh and Sultan Singh, who also filed applications for being impleaded as parties, are already parties to the present revision petitions.
All other applicants have been so allowed to be arrayed as parties keeping in view the object and purpose behind enactment of Section 145(7) that whosoever wants to be impleaded as legal representative be impleaded as party, and also to provide them an opportunity of being heard for just adjudication of the matter in dispute in the criminal revision petitions.
Thereafter, arguments have been advanced on merits in the revision petitions. Both the revision petitions, arising out of the same impugned order, are being disposed of vide this common judgment.
3. Contentions on merits Sh. V. P. Rana, learned counsel, submitted that there is no cogent and convincing evidence of any kind of settlement between Liak Ram (since deceased) and respondents No. 5 to 7 for parting with any of his rights in the -:8:- land, of which he was a co-sharer, on account of their marriage with his daughters-respondents No.2 to 4. It has also been contended that since this is a case where no partition of the disputed land is alleged to have taken place, it cannot be said that party No.3 had any right or any opportunity, to cultivate the land in dispute.
Learned counsel further submitted that since Malkhan Singh also admitted cultivatory possession of party No. 3 in respect of the disputed land since 1975, learned Sub Divisional Magistrate rightly concluded that oral partition had already taken place between the co-owners with regard to the land and that Liak Ram-party no.1 had given his share to his daughters.
Sh. Raj Kumar Sehrawat, learned counsel for respondents No. 2 to 7, namely, Smt. Bimla, Smt. Darshana, Smt. Savitri, Raj Kumar, Ram Kumar and Girdhari, has referred to the Trial Court record and submitted that there is no illegality or irregularity or error apparent on record in the impugned order, and as such, the revision petitions are liable to be dismissed.
Learned counsel further submitted that during pendency of the civil suit before the Civil Court Malkhan Singh -:9:- admitted the factum of family settlement. Learned counsel for respondents No. 2 to 7 further referred to the impugned order wherein it was observed that order of status quo was passed in favour of party No.3 by learned Senior Sub Judge on 21.10.91 which revealed that party No. 3 was in cultivatory possession of the disputed land in the year 1991.
Learned counsel for respondents No. 2 to 7 also referred to reports dated 03.03.92, 14.09.92 and 10.03.93 made by the concerned Halka patwari submitted before the Sub Divisional Magistrate, and argued that from these reports also actual cultivatory possession of party no. 3 in respect of the suit land, stands fully established. In view of the above settlement, contention of learned counsel for respondents No. 2 to 7 is that both the revisions petitions being without any merit are liable to be dismissed.
In support of his submissions, learned counsel has referred to decision in Rajpati v. Bachan and another reported in AIR 1981 Supreme Court 18; Baijnath Choubey and others v. Dr. Ram Ekbal Choubey and others,1981 CRI. L.J. NOC 212 (Pat.) and Wazir Chand and others v. Dr. Rawel Chand Faquir Chand, AIR (34) 1947 Lahore 227. -:10:-
Sh. Preetjeet Singh, counsel for Ranbir Singh, one of the parties to the petitions, submitted that there is no illegality or irregularity in the impugned order and that since the impugned order is based on record and material legally admissible in evidence, the revision petitions are liable to be dismissed.
The other contention raised by learned counsel for Ranbir Singh is that none of the parties aggrieved by the impugned order has resorted to any legal remedy other than this revision petition, which goes to show that they were not at all in actual cultivatory possession of the land in dispute, and that otherwise they would have filed atleast a suit for possession U/s. 6 of Specific Relief Act. Almost similar contention has been raised by Shri B. P. S Tyagi, counsel for Azad Singh.
Learned Addl. PP representing the State-
respondent has argued that the impugned order is based on material placed before learned SDM during pendency of the proceedings and as such both the revision petitions are liable to be dismissed.
It has also been submitted that while passing the impugned order, the learned Sub Divisional Magistrate took -:11:- into consideration not only the reports made by Halka Patwari but also the order of status quo passed by learned Senior Sub Judge in favour of party No.3 and in view of the concurrent observations by the Civil Court and the learned Sub Divisional Magistrate, there is no merit in the revision petitions.
4. Extent of enquiry in proceedings under Section 145 Cr.P.C It is well settled that in proceedings U/s. 145 CrPC it is for the Magistrate to satisfy regarding the existence of a breach of peace and that the enquiry under S. 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties. In R.H. Bhutani v. Miss Mani J. Desai ( AIR 1968 SC 1444).
5. Satisfaction of Magistrate about actual cultivatory possession of the land As regards satisfaction regarding actual cultivatory possession, in Wazir Chand's case (supra), it was observed -:12:- that in proceedings U/s. 145 Cr.P.C it is for the Magistrate to decide as to which party was in possession at the date of the initial order, and if the findings of the Magistrate as to possession is based on evidence and there is material on which the Magistrate could come to such a finding, he is the only Judge as to whether the material was sufficient or not, and if, after the material placed before the Magistrate, he is satisfied that one of the parties is in possession, his order cannot be deemed to be without jurisdiction, and cannot be interfered with in revision. It is only if the finding of the Magistrate as to possession is based on no material at all that the higher Court can interfere with the order on revision.
6. Cultivation of land by a co-sharer separately In Baijnath Choubey's case (supra), it was observed that if by arrangement a co-sharer cultivates any land separately and there is dispute regarding the same, the breach of peace has to be prevented, and it cannot be put off on the ground that the partition by metes and bounds has not taken place amongst the co-sharers.
In view of the above settled legal proposition, it is to be seen here as to whether the finding of the Magistrate as -:13:- to possession of party No. 3 is based on material or that there was no material in this regard.
A perusal of record would reveal that proceedings u/s 145 Cr.P.C. were initiated on receipt of kalandara from the police of Police Station Alipur on 02/04/1993, informing the SDM that there was a dispute between Liak Ram and his daughters Smt. Bimla Devi, Smt. Darshna Devi and Smt. Savitri Devi regarding the suit land.
7. Suit Land Initially, it was mentioned that the suit land comprised in khasra No. 164, 165, 172, 174, 176, 227, 228, 231, 236, 237, 238, 239, 240, 241, 242, 247, 248, 249, 250, 275, 278, 334, 335, 336, 337, 338, 66, 67, 76, 78, 134, 155, 157, 159, 230, 232, 233, 339, 340 is situated within Revenue Estate Mohammadpur Ramzanpur, Delhi.
The Sub Divisional Magistrate was of the view that the dispute was likely to induce the breach of piece between the parties. Accordingly the SDM, directed that all the parties shall appear in court on 13/04/1993 with written statement and evidence in support of there respective claim, with regard to the land in dispute.
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In the course of proceeding, it transpired that actually dispute was confined to land comprised in khasra no. 75, 76, 77, 78, 155, 227, 228, 230, 231, 232, 233, 336, 339 and 340 as all the parties intended to harvest the crop of wheat standing on this land.
After passing of the order dated 12/04/1993, parties were directed to lead evidence on 13/04/1993.
On 05/05/1993, order under Section 145 (8) Cr.P.C. was passed and the crops were ordered to be sold to party No.3 which offered highest bid of Rs.60,500/-. Accordingly, party no. 3 was allowed to harvest the crop on deposit of sale price.
Evidence of party no. 2 was closed on 23/08/1993.
8. Reasonable opportunities granted by the SDM to the parties including party No.1 to lead evidence. (Arguments by Sh. Sunil Chauhan and Sh. V. P. Rana, Advocates.) Sh. Sunil Chauhan, advocate and Sh. V.P. Rana, advocate, have argued that reasonable opportunity was not afforded to party No.1 to lead evidence and evidence of party -:15:- no. 1 was closed by order as a result whereof party No. 1 neither produced before the SDM whatever record was available nor summoned any of the witnesses cited in the list of witnesses. In support of this submission, learned counsel referred to the order sheets passed by learned Sub Divisional Magistrate with effect from 08.04.93.
9. Reply to the argument On the other hand, Sh. Raj Kumar Sehrawat, Sh. Preetjeet Singh and Sh. B.P.S. Tyagi, advocate, argued that proper and reasonable opportunity was granted to party No.1 by the learned SDM to lead evidence during proceedings U/s. 145 CrPC but party No. 1 failed to lead evidence. It has also been submitted that had there been any document available with party No.1, it could produce the same during the proceedings. It has also been submitted that when the evidence of party No.1 was closed, neither that order closing the evidence, was challenged by party No.1 before the higher authorities nor any application was filed by Liak Ram seeking more time to lead evidence or atleast to file documents on record to substantiate the version put forth in the written statement, and as such there is no merit in the contention -:16:- raised by learned counsel for the opposite parties.
10. Discussion To appreciate respective contentions of learned counsel for parties, I have gone through the trial court record which reveals that during pendency of the proceedings, the learned SDM while affording opportunity to Liak Ram - party no. 1 therein, to adduce evidence, from 13/04/1993 to 22/04/1993. Liak Ram placed during proceedings under Section 145 Cr.PC only some documentary evidence. Ultimately evidence of Liak Ram had to be closed on 22/04/1993 by order.
11. A perusal of trial court record would reveal that for the first time vide order dated 13.04.93, the proceedings were adjourned for being resumed on 15.04.93 for filing of list of witnesses, evidence and argument. Halka Patwari was also summoned for that date to submit report about cultivatory possession in the suit land. Halka Patwari filed a report regarding suit land and the same was taken on record. Learned SDM at the same time directed Halka Patwari to attend the court on the next date i.e. 16.04.93 for cross -:17:- examination by the parties.
On 15.04.93, counsel for party No.1 and 2 did not put in appearance. Only counsel for 3rd party was present, and they filed list of witnesses. Keeping in view the urgency in the matter because of the standing wheat crop in the disputed land, the case was adjourned for the next date i.e. 16.04.93, to be taken up at 10.30 a.m., for evidence etc. On the following day, counsel for party No.1 did not put in appearance so as to cross examine the Halka Patwari on his report filed on the previous date. However, the Halka Patwari was cross examined by party No. 2 and 3.
On the aforesaid date, Party No.2 also filed a list of witnesses. Party No.3 filed affidavits of 11 witnesses. The case was adjourned to 19.04.93, to be taken up at 10 a.m.. and the parties were directed to appear with their witness of their own.
On 19.04.93, party no. 2 and 3 filed list of witnesses, but party No. 1 failed to file any list of witnesses.
On the same day, Statement of Patwari was subjected to cross examination on behalf of party No.1. Party No. 1 also filed an application for attachment U/s. 146(1) CrPC. Its notice was issued to party No. 2 and 3 for filing -:18:- reply by 20.04.93, giving short date, keeping in view the urgent nature of the case due to the standing crops.
On 20.04.93, as per order sheet, case was called thrice i.e. at 11.30 a.m., 12.20 p.m. and 1 p.m. Parties were present but their counsel did not put in appearance.
Party No.1 was to file list of witnesses but no such list of witnesses was filed even on that date. The learned SDM enquired from party No.1 about the list of witnesses but he could not explain. The parties were directed to file list of witnesses, lead evidence on 13.04.93, 15.04.93 and 16.04.93.
In the aforesaid order sheet, it stands recorded that list of witnesses was filed by party No.1 and the witnesses were allowed to be summoned and the case was ordered to be taken up at 2 p.m., keeping in view that party No. 2 and 3 had already completed their evidence and the matter was of urgent nature because of the standing crops in the land.
At 2 p.m., when the case was taken up, party No.2 filed reply to the application U/s. 146(1) CrPC but party No.3 did not file any such reply. Thereafter, arguments wee heard. It also stands recorded in the order sheet date party -:19:- no.1 desired to file copy of citation of the decided case reported in AIR 1966, Supreme Court, 605. Although, learned counsel for party no.1 insisted that orders be passed on application U/s. 146 CrPC first and that thereafter further proceedings be continued and the learned SDM rightly observed that the contention was not justified as there was no legal bar in continuing with the proceedings when several opportunities had already been afforded, and as such the case was taken up on priority basis.
The learned SDM rightly further observed that the insistence for passing order U/s. 146 CrPC was an effort to delay the proceedings which was at an advance stage. Accordingly, the learned SDM rightly considered it appropriate to continue with the proceedings.
So far as the witnesses, cited in the list of witnesses, filed by party No.1, learned SDM observed in order sheet dated 20.04.93 that Tehsildar (Delhi) was served for appearance at 2 p.m. in the proceedings but counsel for party No.1 could not examine the Tehsildar (Delhi). Tehsildar (Delhi) was again directed to be present on the next date of hearing. This shows fairness on the part of the SDM while proceeding with the case.
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Learned SDM directed Ld. Counsel for party No. 1 to tell relevancy of the witnesses i.e. Junior Engineer, DESU, Narela, whereupon the learned counsel replied that he wanted to establish that tubewell connection was in the name of Liak Ram and that it was Liak Ram who was paying electricity charges. Party No. 2 and 3, when enquired about the factum of installation of tubewell connection and payment of electricity charges by Liak Ram, replied that tubewell connection was in the name of Liak Ram and he could file receipt regarding payment of electricity charges. In view of this understanding, when the learned SDM observed that there was no need for examination of Junior Engineer, DESU, Narela, it cannot be said that the learned SDM committed any illegality or irregularity. In view of this understanding, it can safely be said that the parties were in agreement over the fact that tubewell connection was installed in the name of Liak Ram.
As regards other witness, cited in the list of witnesses, learned SDM observed in the aforesaid order dated 20.04.1993 that party No. 1 was directed to produce remaining witnesses for their evidence and although its answers was in negative, yet at the same time the party -:21:- undertook to produce remaining witnesses of his own on the next date of hearing. This further goes to show that the Magistrate was fair in affording opportunity to party No.1 once again to lead evidence.
The aforesaid order would reveal that in all fairness, party No.2 was also directed to produce his witnesses but party no. 2 expressed inability to do so. Although, party No.3 was ready with witnesses, it was considered appropriate to give chance to party No.2 to lead evidence first. It was made clear to all the parties, who agreed, that they shall produce all the witnesses of their own for statement/cross examination, if any, and complete the evidence on the next date of hearing i.e. on the following day- 21.04.93.
On 21.04.93, when case was taken up, parties were present but lawyers were abstaining from appearing in court being on strike. Accordingly, case was adjourned to 22.04.93 for further proceedings as directed in order dated 20.04.93. This shows that in the interest of justice and without passing any adverse order, the learned SDM adjourned the proceedings.
On 22.04.93, case was taken up at 10.30 a.m. -:22:- Party No.1 was in attendance, but no evidence of party No.1 was present. Party no.2 and Counsel for party No.3 were present. Referring to the directions, contained in order dated 20.04.93, for conclusion of the entire evidence by the parties for production of their witnesses of their own, as agreed to by the parties, learned SDM observed that party No.1 had not brought any evidence. Even counsel for party No.1 was not present.
It stands recorded in the order dated 22.4.1993 that Party No.1 stated before Learned SDM that he did not want to lead evidence from his side and that no witness in support of his claim/case was present. Still the parties made request to bring their counsel within 5/10 minutes. In the interest of justice, request was allowed and case was ordered to be taken up at 10.45 a.m. At 10.45 a.m., when case was taken up, counsel for party No. 2 and 3 were present. Party No.1 was also present. However, Party No.1 submitted that he had not brought any witness in support of his case and that he did not want to lead any evidence, without his counsel. Since neither any witness of party no.1 nor its counsel was present and party no.1 did not want to lead any evidence, the learned -:23:- SDM closed the evidence of party no.1. In the given situation, it was duty of learned counsel for party No.1 to put in appearance before the Learned SDM so as to avoid delay in the proceedings, keeping in view the urgency of the matter, but learned counsel did not put in appearance. The fact remains that when party No.1 opted not to examine any witness, the learned SDM was justified in closing the evidence of party No.1.
On the same day, evidence of party no.2 and party no.3 was ordered to be recorded. Party no.1 was permitted to call his counsel for cross examination of the witnesses to be examined at 11.10 a.m. and rightly so, and as such it cannot be said that Ld. SDM conducted proceedings with any kind of partiality qua party No.1.
Then the case was taken up at 11.10 a.m. Counsel for party No. 2 and 3 put in appearance. Party No.1 requested that case be taken up at 2.30 p.m. It is not that this request was disallowed. Order would reveal that the Ld. SDM allowed this request.
In the meanwhile, statement of first witness of party No.3 was ordered to be recorded. Statement of first witness i.e. of Ram Kumar was recorded in part. It was at -:24:- that time that Party No.1 and his counsel appeared and moved an application at 12.10 p.m. seeking adjournment of the case for 15 days as party No.1 was intended to move an application for transfer of the case to other court. Keeping in view that party No.1 had made allegations against the court, learned SDM, in the interest of justice, directed that case be referred to learned District Magistrate for its assignment to some other court. Parties were directed to appear before learned District Magistrate at about 4.00 p.m. However, request for transfer of the case was declined and the learned SDM was directed to proceed with the hearing.
On the same day i.e. 23.04.93 at 12.30 p.m., the case was again called by the learned SDM. At that time, party No.1 put in appearance with learned proxy counsel for party no.1. Party no.2 was present without counsel. As requested by both the sides, in the interest of justice, case was ordered to be taken up at 12.45 p.m. When the case was taken up at 12.45 p.m., application for transfer of the case, filed before learned SDM , was rejected, and the matter was listed to be taken up at 2.30 p.m. At 2.30 p.m., learned Presiding Officer was busy, -:25:- and as such, matter was ordered to be taken up at 4.00 p.m. At that time, parties were in attendance. Counsel for parties No. 2 and 3 were also present. Surprisingly, party no.1 did not put in appearance.
At that time, application U/s. 146 CrPC was taken up for arguments. Arguments were heard on the application but the learned SDM did not consider it appropriate to order for attachment U/s. 146 CrPC at that point of time. Accordingly, application U/s. 146 CrPC was dismissed.
Vide the same order, learned SDM observed that the parties requested for early disposal of the proceedings. So, on assurance of the parties, action U/s. 145(8) CrPC was deferred for few days. However, in view of the urgency, as explained in the order, and as requested by the parties that the case be disposed of expeditiously, case was ordered to be taken up on day to day basis. Party No. 2 and 3 were then directed to lead their evidence and matter was adjourned to 26.04.93. In proceedings in this manner, no fault can be found with the procedure adopted by the learned SDM.
On 26.04.93, matter was taken up at 11 a.m. parties were present in person but they requested for taking up the matter after 10-15 minutes. Accordingly, the matter -:26:- was taken up at 11.30 a.m. At that time, parties were present in person. But Counsel for party No. 1 and 2 were not in attendance. Counsel for party No.2 was present. Counsel for party no.2 was asked to lead evidence but the party represented that it had not brought any witness and requested for adjournment. Party No. 2, however, was directed to produce evidence at 3 p.m. on the same day. In the meanwhile, party no. 3 was also directed to bring its witnesses. Party No. 1 and 2 were also allowed to cross examine the witnesses of party No.3. Three witnesses were examined on behalf of party no. 3. Counsel for party no. 2 put in appearance at 1.10 p.m. and wanted to cross examine the witnesses of party no. 3.
Matter was then taken up at 3 p.m. Counsel for party No. 1 and 2 conducted cross examination of one of the witnesses of party No.3. Cross examination of the other witnesses was directed to be continued on the following day. Counsel for party no.2 sought another opportunity to produce witnesses on the next date. This request was allowed. Matter was ordered to be taken up on 27.04.93 at 12.30 p.m. These proceedings conducted on that day do not show any kind of biasness on the part of the SDM.
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On 27.04.93, case was taken up thrice. At the time of first call, counsel for party no.1 and 2 were not present. At the time of 3rd call, counsel for party no. 1 was still not present whereas counsel for party no. 2 and 3 were present. Original applications on which reports Ex. R3-1/4 and Ex. R3-1/5 were stated to have been made by Patwari, were received from Tehsildar (Delhi), as requested by counsel for party No. 2 on the previous date i.e. 26.04.93. Cross examination of witnesses of party No. 3 completed by counsel for party No.2. Surprisingly, Counsel for party No. 1 did not put in appearance to cross examine the witnesses of party No. 3. The matter was adjourned to 28.04.93 to be taken up at 11 a.m., for evidence of party No. 2 and cross examination of its witnesses.
On 28.04.93, parties were present but counsel for parties No. 2 and 3 expressed their inability to participate because of lawyers' strike. Matter was adjourned to 29.04.93.
From 29.04.93 , matter was adjourned to 04.05.93 as agreed to by the three parties in their joint statement that they had no objection to the case being adjourned to that date because of lawyers' strike.
On 04.05.93, parties put in appearance and told -:28:- that their counsel were not available due to lawyers strike and that they shall bring their counsel on the next date. Accordingly, matter was taken up on 05.05.93. It was on that date that application U/s. 145(8) CrPC was disposed of and then the learned SDM passed order to the effect that whichever of the three parties offered highest price, the crops should be sold to him/her.
Party No. 3 offered the highest price i.e. Rs. 60500/-, and as such, the crops stood sold to party No.3. Accordingly, order was passed U/s. 145(8) CrPC in favour of party No. 3. She was also given the right to harvest the crop subject to the condition laid down in the order.
From the above proceedings, it would transpire that after evidence of party No.1 was closed by order, no request was ever made on his behalf seeking even one more opportunity to lead evidence. There was no bar in filing of application before the Ld. SDM or in moving the higher court with such a prayer, but no such step appears to have been taken by party No.1. As rightly submitted by learned counsel for respondents No.2 to 7, party No.1 never thought it proper even to place on record any document per se admissible in evidence other than one khasra Girdawari or to make prayer -:29:- to the Ld. SDM for one more opportunity to lead evidence, and such conduct speaks volumes against party No.1.
12. Statement of Ram Kumar, respondent herein, made before the SDM in addition to eleven affidavits.
Sh. R. K. Sehrawat, learned counsel for respondents No.2 to 7 referred to the statement of Ram Kumar made before the SDM wherein he stated about oral family settlement between Liak Ram - party no. 1 and father in law of Smt. Bimla, Smt. Savitri and Smt. Darshna, daughters of Liak Ram on 01/01/1975. As stated, settlement between Liak Ram and his father in law was to the effect that Liak Ram shall give his share of the land to his daughters and their respective husband in consideration of their marriage. Many co-villagers i.e. from village Ramzanpur were stated to be present at the time of agreement. Statement of Ram Kumar made before the SDM was not subjected to any cross- examination on behalf of party No.1 Liak Ram and this is tantamount to tacit acceptance by Liak Ram of the version narrated by him about the settlement.
Affidavits of eleven persons are stated to have been placed on record by party no. 3, in the proceedings -:30:- before learned Sub Divisional Magistrate. The affidavits were exhibited as Ex.R3-1/15 to 20 and R3-1/8 to 12.
13. Challenge to the admissibility of Affidavits Sh. V. P. Rana, advocate, argued that the 11 affidavits stated to have been filed before Ld. SDM on behalf of party No.3 but out of those affidavits, six affidavits are of party No.3 i.e. Smt. Savitri, Smt. Darshana and Smt. Bimla and their husbands whereas the remaining deponents were inimical against party no.1 as criminal proceedings were instituted against them. It has also been submitted that deponents of four of the affidavits did not appear before Ld. SDM, and as such, version contained in the affidavits could not be subjected to cross examination.
To buttress this contention, Learned counsel referred to decision in Abhimanyu Kumar Roy v. Nanak Ram Agarwalla and others, 1979 Cri.L.J.1103, wherein affidavits of some neighbouring people were filed alongwith the written statement of opposite party No.1 as evidence of and in support of his claim, it was observed that the learned Magistrate dealing with proceedings under Section 145 Cr.PC could ask for and peruse the written statement of the -:31:- respective claims of the parties concerned in dispute only, the learned Magistrate could not look into the affidavits sworn by others in support as evidence or in proof of such claim notwithstanding that they were annexed as a part of the written statement.
But in Atma Ram and another v. Mool Chand and others, 1985 Cri.L.J.264, the other decision referred to by learned counsel on the admissibility of evidence by way of affidavits, it was observed that mere endorsement "Attested" made one each affidavit and initialled by the officer attesting them was held to be not a valid attestation, because the endorsement did not show that contents of the affidavits were read over to the deponent and that the deponent admitted them to be correct before the attesting officer. It was further observed that the amendment made in Section 145 Cr.PC in the year 1956 enabled the Magistrates to decide the question of possession on the basis of affidavits put in by the parties and their witnesses instead of recording their evidence in every case.
It is significant to note that in the proceedings u/s 145 Cr.P.C., summary procedure is to be followed by the Magistrate. In present case, party No.1 never expressed his -:32:- desire to call any of the deponent of the affidavit for cross- examination in respect of their deposition contained therein except Risal Singh who was subjected to cross-examination. There is nothing on record to suggest that these affidavits filed in the proceedings under Section 145 Cr.PC are false or wrong.
Sh. Risal Singh examined before the Ld. SDM on 26.4.1993 was Pradhan of village Ramzanpur in the year 1974. He deposed that on 30.6.74 after the marriage of Smt. Bimla and Smt. Darshana, respondents, with Ram Kumar and Raj Kumar, respondents, Liak Ram father of these two girls, declared that he shall give his entire share of movable and immovable property situated in village Ramzanpur to his sons in law Ram Kumar and Raj Kumar and Girdhari Lal respondents alongwith his daughters Smt. Bimla, Smt. Darshna and Smt. Savitri. It is also in his statement that it so happened as Lal Chand father of Raj Kumar and Ram Kumar was reluctant in accepting the hand of Smt. Darshna and Smt. Bimla in marriage for his these two sons. He further deposed about physical cultivatory possession of these six respondents w.e.f. 30.06.75. He further deposed that the Rabi crop during those days i.e. when his statement was recorded -:33:- in the proceedings was sown by party No.3. He denied in his cross-examination that these crops standing in the disputed khasra numbers were sown by party No.1 and 2.
A perusal of trial court record would reveal that Liak Ram party No.1 filed affidavit 11.4.1993 in the proceedings under Section 145 Cr.PC. This affidavit is lying unattested and as such no reliance could be placed on the deposition contained in it.
Affidavits of other persons were duly attested and formed part of the written statement filed by party No.3.
14. Three reports filed by Halka Patwari before the SDM Before learned Sub Divisional Magistrate, three reports dated 03/03/1992, 14/09/1992 and 10/03/1992, Ex.R3-1/4, R3-1/6 R3-1/2 given by Halka Patwari were placed on record. These reports are to the effect that Smt. Bimla and Smt. Darshna had sown crops on the disputed land.
15. Challenge to the reports of Halka Patwari While disputing the admissibility of reports of Halka patwari, Sh. V. P. Rana, learned counsel argued that provisions of Section 22 of Delhi Revenue Act were not -:34:- complied with by Ld. SDM while calling for these reports of the Halka Patwari. In this regard, learned counsel submitted that no intimation was given to the revenue authorities. Learned counsel further contended that these reports are contrary to the entries made in the Khasra Girdawari; that it is not clear as to under whose orders these reports were given; that Sh. Tara Chand, Halka Patwari, has not been examined; that no diary/order book, as provided under Rules 109 to 115, has been proved on record; that names of almost same witnesses find mentioned in all the three reports. Reference has been made to the provisions of Section 145 Cr.PC, whereunder any Magistrate could be asked to submit report, and it has been argued that report of a Magistrate could be called and that of Halka Patwari. On these grounds, Sh. V.P. Rana, learned counsel contended that learned SDM should have discarded these three reports made by the Halka Patwari, while passing the impugned order.
16. Report dated 03.03.92:
A perusal of report dated 03.03.92 made by Halka Patwari would reveal that it was made on the application filed by Ram Kumar son of Lal Chand before Tehsildar, Alipur -:35:- area, Tis Hazari Courts, Delhi, for renewal of Khasra girdawri in his name and in the names of Raj Kumar, Smt. Bimla and Smt. Darshana. Report made by Halka Patwari is to the effect that Ram Kumar and Raj Kumar had cultivated the land bearing Khasra No. 75, 76, 78, 155, 227, 228, 230, 231, 232, 233, 336, 339 and 340 and that wheat crop was sown therein.
This report was made on application dated 11.02.92 made by Sh. Ram Kumar before the Tehsildar for correction of khasra girdawari in respect of the aforesaid land to his own name, his wife Smt. Bimla, in the names of his brother Raj Kumar and his wife Smt. Darshna.
The aforesaid application dated 11.2.92 was produced on docket being sent to the Tehsildar for 27.4.1993.
17. Report dated 10.03.93:
A perusal of report dated 10.03.93 ( Ex. R3-1/2) made by the Halka Patwari would reveal that Patwari verified the factum of cultivating possession of Smt. Bimla wife of Ram Kumar and Smt. Darshana, wife of Raj Kumar, daughters of Liak Ram, resident of Ramzanpur in respect of land forming part of Khasra No. 75, 76, 78, 155, 227, 228, 230, 231, 232, 233, 336, 339 and 340. This fact was verified -:36:- by him from Sh. Hukam Singh, Jagat Singh, Risal Singh and others. This report was submitted before the SDM on docket having been issued in the proceedings under Section 145 Cr.PC. The docket was issued in the name of Tehsildar, Delhi with direction to produce original application filed by Smt. Savitri and others for correction of girdawari. The application was produced before the SDM. The application is dated 22.12.1992. It was filed before Tehsildar on 22.12.1992 for correction of khasra girdawari in respect of the aforesaid land to the names of Smt. Bimla, Smt. Darshna, Ram Kumar applicant himself and his brother Raj Kumar.
18. Application of Smt. Bimla in connection with harvesting of Rabi crops This application Ex. R3/13 was filed by Smt. Bimla before the Deputy Commissioner, Tis Hazari Courts, Delhi on 6.4.1993 alleging therein that they were cultivating land of her father for the last 15/16 years prior thereto as they had no real brothers; that they had sown wheat crop and Patwari had made report regarding sowing of crops; and that police had objected to the harvesting of the crop by them. -:37:-
19. Report dated 15.04.93 by Halka Patwari:
This report given by Halka Patwari is also in consonance with the previous report dated 10.03.93 that Smt. Bimla Devi wife of Ram Kumar and Smt. Darshana, wife of Raj Kumar, daughters of Liak Ram, had cultivated wheat crop in the land forming part of khasra No. 75, 76, 78, 155, 227, 228, 230, 231, 232, 233, 336, 339 and 340.
It is true that under Section 145 Cr.PC, the learned SDM could call for report of any Magistrate for his assistance in the proceedings, but instead the above three reports were obtained and taken into consideration. However, I do not find any merit in the contention raised by Sh. V. P. Rana and Sh. Sunil Chauhan that the Ld. SDM should have discarded these reports from consideration. There is nothing on record to suggest that any of these reports was based on falsehood. The reports were forwarded to the Field Kanungo and then to the Naib Tehsildar and then vetted by each of these officer. No allegation has been leveled against the Field Kanungo or Naib Tehsildar who appended their respective endorsement to the report of the Halka Patwari on these reports, so as to disbelieve their endorsements appended thereto. Learned SDM could take judicial notice of these -:38:- reports of the revenue official or officers as these were obtained in pursuance of the orders passed in the proceedings and submitted by these officials/officers in the discharge of their official duties.
In his statement made before the SDM, Sh.Jai Singh deposed on the application Ex.CW1/C dated 22.12.92 of Shri Ram Kumar he went to village Ramzanpur in the last week of February, 1993 and at the spot Shri Hukam Singh, Sh. Jagat Singh, Sh. Risal Singh and others testified that Smt. Bimla wife of Sh. Ram Kumar and Smt. Darshna wife of Raj Kumar, daughters of Liak Ram had cultivated the land which otherwise stood in the name of said Liak Ram to the extent of ½ share. It is in his cross-examination that they cannot record in the khasra girdawaris sons, wife, daughters and other family members of the bhoomidar helping the bhoomidhar in cultivation during his life time. He further explained in his cross-examination on behalf of Malkhan Singh and others that they do not record name of person cultivating the land other than the recorded owner. Then he volunteered that if report in respect of any khasra is called by superior officer, then they have to give respect in this regard. In his cross-examination he denied the suggestion that he had issued a false report at -:39:- the instance of Bimla Devi and others or that the crops standing in the disputed khasra numbers were sown by Malkhan Singh and others.
Sh. Risal Singh examined before the learned SDM on 26.4.1993 was Pradhan of village Ramzanpur in the year 1974. He deposed that on 30.6.74 after the marriage of Smt. Bimla and Smt. Darshana, respondents, with Ram Kumar and Raj Kumar, respondents, Liak Ram father of these two girls, declared that he shall give his entire share of movable and immovable property situated in village Ramzanpur to his sons in law Ram Kumar and Raj Kumar and Girdhari Lal respondents alongwith his daughters Smt. Bimla, Smt. Darshna and Smt. Savitri. It is also in his statement that it so happened as Lal Chand father of Raj Kumar and Ram Kumar was reluctant in accepting the hand of Smt. Darshna and Smt. Bimla in marriage for his these two sons. He further deposed about physical cultivatory possession of these six respondents w.e.f. 30.6.75. He further deposed that the Rabi crop during those days i.e. when his statement was recorded in the proceedings was sown by party No.3. He denied in his cross-examination that these crops standing in the disputed khasra numbers were sown by -:40:- party No.1 and 2.
The above version of Risal Singh is in consonance with the version narrated by Smt. Bimla who deposed that she married Ram Kumar whereas his sister Darshna married Raj Kumar on 30.6.75 and that possession of movable and immovable property of their father was given to Ram Kumar, Raj Kumar, Girdhari and the three sisters as per declaration dated 01.01.74 made by their father, and that they are in actual physical cultivatory possession of the land in question w.e.f.30.6.75.
20. Written statements of Malkhan Singh in civil suit 587/1991 and 645/1991 and his affidavit.
Party no. 3 also produced before learned Sub Divisonal Magistrate copy of written statement and copy of affidavit Ex.R3/11 filed by Malkhan Singh - party no. 2 in suit no. 587/1991 and suit no. 645/1991 pending before learned Sub Judge, Ist class. Case of party no. 3 is that Malkhan Singh admitted in that written statement and his affidavit the factum of family settlement in the year 1975 and that as per family settlement the disputed land forming one third share of Liak Ram came to be delivered to Smt. Bimla, Smt. Darshna -:41:- and Smt. Savitri and their respective husband and further that they were cultivating this land w.e.f. year 1975. This goes to show that while contesting the proceedings under Section 145 Cr.PC, Malkhan Singh came forward with the plea not in consonance with the plea put forth in the written statement and the deposition in his affidavit filed in the aforesaid suit. In their joint written statement dated 01.11.1991 filed by Malkhan Singh, Samay Singh and Chander Has in suit No. 645 of 1991 titled as Liak Ram v. Smt. Bimla Devi and thirteen others, it was pleaded that defendants No.1 to 4 namely Smt. Bimla Devi, Smt. Darshna, Smt. Savitri and Smt. Angrez Kaur were residing with their parents and they used to help her father in the pursuit of agriculture; that defendants No.5 to 8 plough the land for cultivation with their tractors and as such defendants No.1 to 8 namely Smt. Bimla Devi, Smt. Darshna, Smt. Savitri, Smt. Angrez Kaur, Ram Kumar, Raj Kumar, Girdhari and Om parkash used to cultivate the land of the share of plaintiff Liak Ram.
Affidavit dated11.12.1992 is the affidavit of Malkhan Singh to the effect that he admitted family settlement made by Liak Ram one of the joint owners of the property with giving his entire 1/3rd share in the jointly shown said property, -:42:- in favour of his daughters and sons in law namely Smt. Bimla, Smt. Savitri, Smt. Darshna wife of Ram Kumar, Girdhari Lal and Raj Kumar respectively. He further testified in this affidavit that he shall not disturb physical cultivation possession over this immovable property and further that said persons were actual owners of said immovable property to the extent of 1/3rd share of Liak Ram. He further testified therein that aforesaid persons were in cultivatory physical possession of the land since 1975 and that they had sown the crops from that time onwards and they were peaceful law abiding citizens of the village.
Surprisingly, in the cross-examination of Ram Kumar on behalf of counsel for party no.2, it was suggested to him that the land was lying as Banjar. This suggestion is in contradiction with the version of party No.2. It was not suggested to Ram Kumar in his cross-examination that the disputed land was being cultivated by party no.1 or party no.2.
There is nothing on record to suggest that these documents i.e. the written statement and the affidavit were filed by Malkhan Singh under any kind of pressure.
From the material available on record, it can safely be said that factum of residence of respondents No.2 to -:43:- 7 in village Ramzanpur was fully proved before the learned SDM during the proceedings. It has come in evidence that Liak Ram was handicap and unable to himself cultivate the disputed land. No evidence has been led to the contrary so as to disbelieve the version put forth by party No.3 in this regard.
21. Receipts Ex. R3-1/21 (collectively exhibited):
A perusal of trial court record would reveal that receipts Ex. R3-1/21 (collectively exhibited) were produced during the proceedings under Section-145 CrPC. A perusal of these receipts would reveal that these are in respect of sale of produce i.e. wheat crop and rice by Smt. Bimla Devi, daughter of Liak Ram at Agricultural Produce Market Committee, Narela. Receipts are dated 03.07.90, 10.07.90, 09.10.90, 01.11.91, 06.11.92, 13.10.92, 15.10.92, 07.01.92, 27.10.91, 08.10.91, 15th of October, 12th of June, 19.07.92, 10.10.92, 13.10.92, 06.11.92 and 12.02.92. Sh.V.P.Rana and Sh.Sunil Chauhan, learned counsel contended that in absence of examination of the author of these receipts, no reliance could be placed on any of these receipts. It is true that party No.3 did not examine the concerned person who executed these receipts, but while passing the impugned -:44:- order the learned SDM considered not only these receipts, but other above referred to documents and then opined about actual cultivating possession of party No.3. Notably, neither Liak Ram nor Malkhan Singh or any other party produced during those proceedings any document to prove sale of any crop by Liak Ram after harvesting the same from the disputed land.
22. Entry in khasra girdawari Ex.CW1/A filed by Liak Ram As per version of party No.3, their father Liak Ram entered into an agreement in the year 1975 and agreed to hand over his share of immovable property comprising of 11 acres of land standing in his name in the revenue record, to their respective husband by way of consideration of their marrying party no.3, namely, Smt. Savitri, Smt. Darshana and Smt. Bimla. Assailing this version, Sh. V.P. Rana, learned counsel, contended that had it been so, party No.3 would have applied for correction in Khasra Gadawri right from the year 1975, but no such step was taken by party No. 3 and their husband and that the first application in this regard came to be filed in the year 1993, which adversely affects the case of party no.3.
-:45:-
Relying on Ex. CW1/A i.e. copy of Khasra Girdawari, placed on record on behalf of Liak Ram before the SDM, Sh. V. P. Rana, learned counsel, submitted that this document was completed on 30.04.93 and as per this document, as on 09.09.92 and then on 23.02.93, none of the party of No.3 was in actual cultivating possession of the suit land, but the learned SDM did not take into consideration this document for good reason.
Learned counsel has also referred to provisions contained in Chapter 4 of Delhi Revenue Land Rules 1962, in particular Rule 66, and argued that in view of these rules, the observation made by learned SDM in not taking into consideration Khasra Girdawari Ex. CW1/A, is against the well settled rules, and the impugned order is liable to be set aside.
Learned counsel further contended that in column No. 21, name of the person in cultivating possession other than the persons, whose names find mentioned in column No. 4 and 5, is to be depicted, but the learned SDM did not properly appreciate the contents of the khasra girdwari and as such wrongly discarded this document from consideration.
It is true that khasra girdawari Ex.CW1/A filed on -:46:- behalf of Liak Ram during the proceedings under Section 145 Cr.PC. It is also true that sub rule (3) of rule 63 of Delhi Land Revenue Rules, 1962 provides that if a person other than the one recorded in columns 4 and 5 of Form P5 is found to be in actual cultivatory possession of any land at the time of partal, his name and the crop is to be shown in Form P5 for lands other than the land which has vested in Gaon Sabha. Although, name of the Bhoomidar himself cultivating the land is not required to be mentioned in column no. 21 as rightly argued by Sh. V.P. Rana, learned counsel, sufficient material was placed on record before learned SDM, on behalf of party no. 3 regarding actual cultivatory possession in respect of the disputed land.
As noticed above three reports made by Halka patwari and vetted by Field Kanungo and Naib Tehsildar were placed before Ld. SDM during the proceedings, which were rightly taken into consideration. It has appeared in the cross- examination of Jot Singh, Halka Patwari that they do not record name of a person, other than the recorded owner, who cultivates the land. He further explained that in this regard report is made when called upon by a senior officer.
No doubt, presumption of truthfulness is attached -:47:- to the entries in khasra girdawaries and same can be looked into as a piece of evidence, but the only procedure for necessary changes in the original khasra girdawari is set out under Rule 67. In view of the explanation furnished by the Halqa Patwari, if no entry was made in khasra girdawari Ex.CW1/A showing party No.3 in actual cultivating possession, party No.3 cannot be made to suffer for inaction on the part of the revenue official. As noticed above, Malkhan Singh in his written statement and affidavit in the above referred to suit admitted the averments put forth in the plaint regarding family settlement in the manner noticed above and as discussed above, there is nothing on record to suggest that the three reports submitted by Halka Patwari to the Ld. SDM during the proceedings were based on falsehood. I do not find any merit in the contention raised by Sh. V.P. Rana, learned counsel, that the procedure meant for preparation of Khasra Girdawari was required to be followed while making these reports. Therefore, entries in Ex.CW1/A do not help Liak Ram so far as actual cultivatory possession of the disputed land is concerned.
23. Proceedings under Section 145 Cr.PC barred by law Sh. V. P. Rana and Sh. Sunil Chauhan, -:48:- Advocates, submitted that when proceedings were already going on before the Civil Court and also before the Revenue Assistant in respect of the suit land, Ld. SDM should not have proceeded under Section 145 Cr.PC. In support of this submission, learned counsel referred to decision in Manisha Devi v. Union of India, 1995 Cr.R. 1 (Delhi) and Smt. Renu Sachdeva v. Commander, B. S. Rekhi and others, 1985 Cri. L.J.688.
In this regard, it is significant to note that there is nothing on record to suggest that the civil suit remained pending. In the course of arguments, it was submitted that the civil suit came to be dismissed in default of appearance.
Even otherwise, in view of the decision in Jagdish Ram v. State of Haryana and others, 1990 Cri. L.J.1917; Sheikh Abdul Hamid v. Tamser Ali and others, 1983 Crl.L.J NOC 6 (GAUH.) and Jhunamal alias Devandas v. State of Madhya Pradesh and others, AIR 1988 SC 1973, relied upon by Sh. R. K. Sehrawat, learned counsel for respondents No.2 to 7, it can be said that proceedings under Section 145 Cr.PC are in aid of civil Court and parallel proceedings and pendency of civil suit does not justify quashing of proceeding under Section 145 Cr.PC. -:49:- Furthermore, in the instant case when learned SDM while passing order under Section 145(1) Cr.PC was rightly of the view that dispute was likely to induce breach of peace between the parties, and the parties participated in those proceedings without making any attempt to get them quashed, it cannot be said that proceedings initiated by the learned SDM were barred by law.
In case of dispossession or denial of right or title of one in respect of some immovable property, the aggrieved party is entitled to file a suit for possession or for declaration and possession. Similarly, when a party does not succeed in the proceedings under Section 145 Cr.PC, it would be at liberty to resort to remedy for possession. However, in this case, a perusal of record would reveal that the unsuccessful party in the proceedings under Section 145 Cr.PC neither filed any suit for possession on the basis of title or on the basis of possession or for declaration.
In Bhinka and others v. Charan Singh, AIR 1959 SC 960, Hon'ble Apex Court held:
(1) Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. His order is -:50:- a temporary order irrespective of the rights of the parties, which will have to be agitated and adjudicated upon by a competent Forum and in the manner provided by law. The life of the said order is conterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The orders under S.145 of the Code are thus merely police orders and do not decide any question of title.
(2) A party unsuccessful in an order under S. 145(1) would initiate proceedings in a competent Court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for.
In legal proceedings initiated before a competent Court consequent upon attachment under S. 146(1) it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the Court it would suffice if only determination of the rights with regard to the entitlement to possession is sought for.
While referring to the expression an eviction "in due course of law" within the meaning of sub-section (6) of S. -:51:- 145 of the Code, Hon'ble Supreme Court observed that ordinarily a party unsuccessful in proceedings under S. 145 ought to sue for recovery of possession seeking a decree or order for restoration of possession. However, a party though unsuccessful in proceedings under S. 145 may still be able to successfully establish before the competent Court that it was actually in possession of the property and is entitled to retain the same by making out a strong case demonstrating the finding of the Magistrate to be apparently incorrect.
Purpose of the enforcement of the laws like the provision under Section 145 Cr.PC i.e. to maintain peace and order in society stands achieved. Dispute relating to land as defined in sub-section (2) of S. 145 having arisen, causing a likelihood of a breach of the peace, S. 145 of the Code authorised the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken -:52:- cognizance of the dispute rightly confined himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to sub-section (4) of S. 145. Therefore, parties have been rightly directed to maintain the status quo as to possession until the entitlement to possession was determined by a Court. The declaration having been made, it would be for the unsuccessful party to approach the competent Court and secure such order as would enable his entering into possession and evicting the party successful in proceedings under S. 145.
24. Conclusion In view of the above findings, this court comes to the conclusion that the learned SDM rightly concluded that party No. 3 Smt. Bimla, Smt. Darshana and Smt. Savitri were in actual cultivating possession, in respect of land bearing khasra Nos. 75, 76, 77, 78, 155, 227, 228, 230, 231, 232, 233, 336, 339, 340, within the Revenue Estate of Village Mohamaddpur Ramzanpur and that they were entitled to retain its possession until ousted by due course of law. The -:53:- learned SDM also rightly ordered forbidding any kind of disturbance in their possession in the meanwhile. The impugned order, therefore, does not suffer from any illegality or irregularity and when there is nothing on record to show that the impugned order is liable to be set aside on any other valid ground while upholding the impugned order, both the revision petitions are hereby dismissed.
25. Trial Court record be returned and files of revision petitions be consigned to record room.
26. Copy of this judgment be placed in the revision petition titled as Liak Ram v. State and others. Announced in Open Court on Dated: 4th of December, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi 04-12-2007