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Jammu & Kashmir High Court

Arvind Kumar vs State & Anr. on 18 April, 2018

Equivalent citations: AIRONLINE 2018 J AND K 594

                 HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU
561-A Cr.P.C No. 437/2014
MP No. 514/2014

                                            Date of decision:18.04.2018
 _______________________________________________________________
Arvind Kumar                      Vs.                        State & anr.
________________________________________________________________
Coram:
           Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing Counsel:

For petitioner(s)/appellant(s)        :   Mr. Rahul Pant, Advocate.
For Respondent(s)                     :   Mr. L.K.Moza, AAG.

_______________________________________________________________ i. Whether approved for reporting in Press/Media : Yes/No ii. Whether to be reported in Digest/Journal : Yes/No This petition under section 561-A Cr.P.C. seeks quashing of FIR No. 382/2014 of Police Station, Kathua registered against the petitioner on 02.11.2014 under sections 447 & 427 RPC on a report lodged by one, Romesh Chander Anand, (hereinafter to be referred as the informant).

It is alleged by the informant in the report lodged by him, which has been similarly incorporated in the impugned FIR, that his father, Babu Ram and one, Khajan Singh purchased one kanal of land comprised in survey No. 330 min situate at 'Taraf Tajwal', Tehsil, Kathua in equal shares by virtue of Sale Deed registered on 24.01.1968. The description and dimensions of the said land was shown in the 'Titma Shajra' as Plot No. 1 and mutation was attested in favour of the vendees and reflected in the khasra entries. The father of the informant remained in continuous possession of the land purchased by him in his life time and after his death, informant stepped into his shoes as his legal heir and is in possession thereof. Informant alleged that on 12.10.2014, he received 561-A Cr.P.C. No. 437/2014 Page 1 of 4 information at his residence at Jammu that the accused, herein petitioner, has trespassed upon his land by making entry by dismantling the brick wall of the land and has engaged labour for digging and filling plinth in his land. He reached Kathua and found that the accused has trespassed upon the land by breaking the wall causing loss of 5000 rupees to him. On this report, impugned FIR was registered.

Heard learned counsel for the parties.

Case set up by the petitioner in seeking quashing of the impugned FIR is that his father had purchased 3 kanals of land comprised in Khasra No. 2301 prior to the year 1970. He constructed residential house on the said land and shifted there along with family including the petitioner on 05.02.1975. Since then the petitioner and his family is residing in the said house and, besides the 3 kanals of land purchased by the petitioner's father, they also came in possession of the adjoining land measuring 3 kanals, which falls at the back of the house of the petitioner towards south between the house and the rear wall of irrigation complex.

The stand of the petitioner, precisely, is that in addition to the 3 kanals of land purchased by his father he is in continuous and peaceful possession of another 3 kanals of land falling at the back of his house since 05.02.1975 and has acquired ownership of the said land by prescription. It is contended that the informant has no concern with any land inasmuch as there is no access to the land falling at the back of his house except through his house and land. Petitioner has contended also that on 15.10.2014, the informant accompanied with SHO, Police Station, Kathua, hereafter respondent No.2 and two others namely, Sat Pal and Lasjan Singh, trespassed into his house and in this regard he has filed FIR No. 358 of 2014 against the informant, Sat Pal and Lasjan Singh. Informant made another attempt to trespass into the house of the petitioner on 19.10.2014 about which he lodged another FIR No. 365/2014 under sections 451/447 RPC.

Learned counsel for the petitioner, Mr. Rahul Pant, Advocate submitted that to make out an offence under section 447 RPC and connected offence under section 427 RPC the aggrieved person has to show that he is in possession of the property upon which the trespass is alleged to have been committed. In this case, the petitioner is in long duration continuous and uninterrupted possession of the land in question and has acquired ownership therein by prescription so no prima facie case under section 447 or 427 RPC is made out and the FIR is liable to be quashed. Learned counsel argued also that at no point of time the informant or his father was in physical possession of the said land inasmuch as this land has no access and the only access available is through the house and the land of the petitioner, which are enclosed within a boundary wall.

Per contra, learned Additional Advocate General, Mr. L.K.Moza, argued that the question of fact as to whether the informant is not and had never been in possession of the land or that the petitioner has acquired ownership by prescription cannot be determined in a petition under section 561-A Cr.P.C and this petition is, therefore, not maintainable.

Admittedly, petitioner does not have original title to the 3 kanals of land falling at the backside of his house. He, however, claim to be in continuous possession thereof and to have acquired ownership by prescription. On the other hand, the informant claims that his father and another had purchased 1 kanal of land in equal shares. In the report lodged by him, he has referred to the Sale Deed and the date of its registration by virtue whereof his father and another purchased the said land and has stated also that the land is duly reflected in Titma Shajra attached to the Sale Deed and mutation too has been attested in favour of his father. In such a backdrop, whether the petitioner himself and/or through his father is in continuous possession of the land since 05.02.1975 and has acquired ownership right by prescription are serious questions of fact, which cannot be entertained and determined in a petition under section 561-A Cr.P.C 561-A Cr.P.C. No. 437/2014 Page 3 of 4 and rather require investigation. FIR involving such a question of fact cannot be quashed in exercise of the inherent power of this court.

Viewed thus, this petition has no merit and is, therefore, dismissed.

(Janak Raj Kotwal) Judge Jammu:

18.04.2018 Pawan Chopra 561-A Cr.P.C. No. 437/2014 Page 4 of 4