Allahabad High Court
Prabhakar Tiwari vs State Of U.P. And 5 Others on 9 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:193407 A.F.R. Reserved on 15.9.2023 Delivered on 9.10.2023 Court No. - 81 Case :- MATTERS UNDER ARTICLE 227 No. - 10770 of 2022 Petitioner :- Prabhakar Tiwari Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sandeep Kumar Tiwari Counsel for Respondent :- G.A.,Shivanand Mishra Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri K.K.Tiwari, Advocate holding brief of Sri Sandeep Kumar Tiwari, learned counsel for the petitioner, Sri Shivanand Mishra, learned counsel for respondent nos.2 to 6 and Sri Hari Pratap Gupta, learned A.G.A. for the State.
2. This petition under Article 227 of the Constitution of India has been moved by the petitioner- Prabhakar Tiwari, against the respondent nos. 2 to 6- Satya Prakash Pandey and 4 Others, all sons of Ram Chandr, and the State-respondent no.1, with a prayer to set-aside the order dated 12.10.2021 passed by the learned Sub-Divisional Magistrate under section- 146(1) Cr.P.C., as well as the order dated 15.11.2022 passed by revisional court, affirming the same.
3. As per the submissions of the petitioner:-
• Plot no.3, area 1.8960 hectare was recorded in the name of one Ram Poojan- Manager of Patel Memorial Inter College, Atraulia, Azamgarh.
• He executed a sale deed in favour of Narendra Pathak and Ratan Pathak on 11.07.1980.
• The name of the vendees came to be recorded in revenue record by order dated 16.01.1992 passed by Naib Tehsildar.
• The order dated 16.01.1992 was recalled on the application of one Ram Chet Pandey, by order dated 14.03.2012.
• The aforesaid order of recall was challenged by Narendra Pathak and Another and the order dated 14.03.2012 was recalled on 18.04.2018, therefore the order dated 16.01.1992 came to be maintained.
• Once again a restoration application was filed by the opposite party challenging the order dated 18.04.2018 and the operation of the order dated 18.04.2018 was stayed, till disposal of restoration application.
• This stay order was passed on 06.07.2018 and the same was in fact set-aside by Tehsildar Budhanpur, by order dated 25.10.2019.
• The aforesaid order dated 25.10.2019 was challenged by Jai Prakash Pandey and Others, by filing a Revision No.2436 of 2019, before the Board of Revenue at Lucknow (Jai Prakash Pandey and Others vs. Narendra Pathak and Another).
• This revision was dismissed on 18.04.2022. Thus the order of stay dated 25.10.2019 was maintained. Therefore, the name of Narendra Pathak and Ratan Pathak continued to remain in the revenue record in the light of order of Board of Revenue dated 18.04.2022. Their names continued to be recorded in revenue record and they executed a registered sale deed in favour of the petitioner on 23.06.2018 and the possession was handed over to the petitioner.
• The name of the petitioner was mutated in the revenue record by order dated 30.11.2019.
4. The main contentions of the petitioner are:-
The petitioner is in actual possession of the disputed property;
The order of the Board of Revenue dated 18.04.2022 has attained finality.
The dispute arose during construction of the boundary wall of the school by the petitioner;
The opposite parties opposed the construction and filed an F.I.R. being Case Crime No.11 of 2020, under sections- 147, 148, 379, 427, 504, 506 I.P.C.; the trial is pending;
Meanwhile, the police station- Atraulia, submitted a report on 25.02.2020 for initiating a proceeding under section 145 Cr.P.C. in connivance with the opposite party; a supplementary report was also given by the police on 07.03.2020.
The Sub-Divisional Magistrate without going through the material available on record and without considering the supplementary report of the police and further ignoring the fact of actual possession of the petitioner over the disputed property, passed an order of attachment on 12.10.2021 passed under section 146(1) Cr.P.C.
The criminal revision preferred by the petitioner challenging the order dated 12.10.2021 was dismissed by order dated 15.11.2022.
Both the orders are wholly illegal, arbitrary and unsustainable.
The petitioner is in possession of the disputed property. The opposite parties have no right and title over the same.
They lost their case up to the Board of Revenue, therefore the impugned orders, being bad on facts and in law, are liable to be set-aside.
5. The submissions of the respondent nos.2 to 6 are as below:-
• Manager of Patel Memorial Higher Secondary School, Atraulia- Ram Poojan got executed a forged gift deed in his favour, from Smt. Shiv Kali and sold the disputed land to Narendra Pathak and Ratan Pathak without having any title over it.
• The mutation proceeding initiated by Ram Poojan on the basis of gift deed was dismissed by order dated 22.05.1967.
• Earlier, Smt. Shiv Kali filed a Suit No.204 of 1960 against the Patel Memorial Higher Secondary School and few others. The suit was dismissed on 20.11.1963 observing that Smt. Shiv Kali had no right left in the disputed land, though the gift deed was held to be valid.
• In such circumstances, the gift deed did not convey any right to Ram Poojan- the Manager of the said school and therefore Narendra Pathak and Ratan Pathak did not carry any title.
• The petitioner do not have any bona fide claim to the disputed property.
• A Civil Suit No.1381 of 2018 "Jai Prakash Pandey vs. Prabhakar Tiwari and Others" filed by respondent for cancellation of sale deed is pending.
6. The main contentions of respondents are that the petitioner's claim have no basis; his predecessors were involved in a prolonged litigation regarding mutation etc. on the basis of a sale deed, which could convey no rights and title as the seller had no right and title. The mutation in revenue records do not give any right or ownership over the property; the entries of revenue record have utility as regards collection of revenue only; the petitioner has never been in possession; the proceeding of the criminal case filed by the petitioner against the respondents has been stayed by the High Court in Misc. Application No.1326 of 2020 filed under section 482 Cr.P.C. In the end, it is contended that petitioner is neither owner of the property, nor in possession and that the dispute relates to possession only as is provided under sections- 145 and 146 Cr.P.C. and that nobody was found in possession of the land for the last 40 years, hence the impugned orders are correct and cannot be faulted.
7. To decide the matter in controversy, it is appropriate to once consider the provisions of section 145 Cr.P.C. Section 145 Cr.P.C. provides for a procedure where an Executive Magistrate has to act upon, in cases where there is likelihood of breach of peace on account of a dispute concerning land or water. It may be noted that Chapter-X of Cr.P.C. is titled as maintenance of public order and tranquility. This Chapter-X is divided into four parts i.e. A, B, C and D. Part A deals with unlawful assemblies, Part B deals with public nuisances, Part C deals with urgent cases of nuisance or apprehended danger and Part D deals with disputes relating to immovable property. As is clear from the above, this Chapter provides for an action to prevent breach of peace and maintenance thereof. The legislature has given powers to the Executive Magistrates to take action under certain contingencies with the sole motive of preventing breach of peace and maintenance of public order and tranquillity. No substantive rights of the parties are decided and the proceeding is essentially preventive and procedural in nature.
8. Sections 145(1) and 145(4) of Cr.P.C. are as below:-
"145. Procedure where dispute concerning land or water is likely to cause breach of peace.
1. Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
2. ....................
3. .....................
4. The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1)."
9. From conjoint reading of the above provisions, it is quite clear that the primary duty of the Magistrate is to examine the claims of the parties as regards de-facto possession over the subject of dispute. The parties, are of course entitled to submit their written statements of their respective claims. In turn, the Magistrate shall look into their claims to decide upon which of the parties is or was in possession on the date of the order passed by him under sub-section 1 of section 145 Cr.P.C. or to decide which party was in actual possession, within two months next before the date (on which the report of police officer was given or the information was received by the Magistrate after that date and before the date of this order), in cases where any party has been forcibly and wrongfully dispossessed.
10. From the provisions of law, an undisputed position emerges that rival claims have to be considered, (irrespective of the fact whether or not they touch upon the right to title or the ownership over the property), to find out as to whether any party is/has been/was in possession on such material dates as above. For this limited purpose, the Magistrate can sift through the oral and documentary evidence produced by the parties. The Magistrate is empowered to adjudicate the question of de-facto possession and no more.
11. The principles of law involved herein, have been recited with the only purpose that this Court proceeds in this matter with that much legal clarity in mind as regard the scope of enquiry under section 145 Cr.P.C. Simultaneously one more important aspect which has to be kept in mind is that the petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India and this Court here is not deciding a revision or an appeal.
12. In any legal battle, one contesting party may have some merit in their claims and the other party too may have some merits to their claims. The merits may flow from their respective claims as to ownership. And where the claim to ownership or title are involved, the fact of de-jure possession or implied possession may be of value. However, as far as the law which applies in the matters coming within the purview of section 145 Cr.P.C. is concerned, the claims to title or validity of possession, express or implied may not be of much utility. Even if the Executive Magistrate finds some merit in the claims of one party or the other, which might flow from their valid rights to the ownership, he may have to turn a blind eye. He has to exercise a limited power with a view to prevent breach of peace. In matter of such nature, there is always an invisible third party that is the society at large. The jurisdiction, the Executive Magistrate has to exercise, is aimed at upholding the rights of the society at large, to have peace in the area or may be in the neighbourhood. This is not to say that the claims or the averments and the evidence, whether documentary or the oral, as regards ownership and consequent possession over the property or as regards "possession" only with or without any reasonable or credible claim of ownership or title, cannot be perused or assessed at all. Of course, the Court is entitled to go through such claims and the evidence but only for a limited purpose of finding out the actual possession over the property in dispute.
13. In Sanjai Kumar and Another vs. VIth Additional District Judge, Bareilly and Others, 1996 CriLJ 2413, a question arose before the Allahabad High Court, whether in cases, where there is no effective interim order recording that a particular party was in possession, passed by any civil court, the proceedings under section 145 Cr.P.C. shall be dropped? The Court considered that question; the relevant part of the judgement is as below:-
"4. The only material question for decision was as to whether in the absence of an effective interim order indicating possession by the civil Court in the aforesaid civil suit in favour of either of the parties to the dispute, the proceedings under Section 145, Cr. P. C. had become liable to be dropped?
5. Learned counsel for the parties relied upon a few decisions of various Courts for and against on the aforesaid question and after going through the same I find that the decision which applied to the facts of the instant case was a decision of this Court reported in 1992 JIC 35, Abdul Gafoor v. State of U.P. wherein it was held that the criminal Court continued to exercise the jurisdiction under Section 145, Cr.P.C., if no effective interim order was passed in the suit pending before the competent civil or revenue Court. This Court before laying down the aforesaid proposition of law, had considered some other decisions also. It would be proper to reproduce below the relevant findings of this Court in the said decision.
14. The Allahabad High Court also dealt with the question of applicability of the law laid down by Supreme Court in Ram Sumer Puri case in following manner.
In the case of Ram Sumer Puri, Mahani, the question of title and possession over the subject- matter had already been adjudicated and the suit had been dismissed by the Civil Judge. An appeal against the judgment and order of the Civil Judge was still pending. It was in this background that the Supreme Court did not approve the parallel proceedings under Section 145, Cr. P. C. in respect of the same subject-matter between the same parties. Thus, Sumer's case is not an authority on the question that proceedings under Section 145, Cr. P. C, must be dropped in all cases whenever a civil suit is pending in respect of the same subject-matter between the same parties or between the parties through whom the panics are claiming their rights. Of course, parallel proceedings should not be allowed to continue, if a party under Section 145, Cr. P. C.,can seek an effective remedy/declaration from the Civil Court. Even in such a case, the proceedings under Section 145, Cr.P.C. should be dropped only when the Civil Court has passed some effective order indicating as to which of the parties was entitled to possession. In some cases, the proceedings should also be dropped when the Civil Court has appointed a receiver or has made some arrangement for the maintenance of such property. But, when the Civil Court does not clarify the position regarding the possession of the contesting parties by passing an effective order and simply passes an innocuous order like maintenance of status quo, the criminal proceedings are not to be dropped because in that case both the parties may stake their claim for possession and the situation may lead to the breach of peace. In such cases, even the proceeding under Sections 107/116, Cr.P.C. may not prove to be effective and the subject-matter may have to be attached by the Criminal Court. Of course, orders passed by the Criminal Court in such cases shall be subject to the decision of the Civil Court. Thus, the Magistrate is not bound to drop the proceedings pending in his Court in all cases under Section 145, Cr. P. C. for the simple reason that a civil suit is pending in the Civil Court in respect of the same matter between the same parties or through whom they are claiming.
6. In the instant case, Civil Court even did not pass order directing the parties to maintain status quo although the same would have been of no help as it would not have indicated the actual possession of either party. Thus, it is not a case in which any help would have been available to the Magistrate from the mere pendency of the civil suit between the parties for maintaining peace. The Magistrate was duty bound to maintain peace and, therefore, had got no alternative except to proceed further with the proceedings under Section 145, Cr.P.C. and the impugned attachment order thus appealed to be perfectly legal and valid. The proceedings under Section 145, Cr.P.C., therefore, continued to be maintainable and the Magistrate could not be directed by this Court to drop the same."
15. A similar situation arose before the Allahabad High Court in Raj Bahadur and Others vs. State of U.P. and Another, decided on 25 July, 1994 in Criminal Revision No.1032 of 1994. In that case, the civil court had passed orders directing the parties to maintain status-quo. The S.D.M. Court had dropped the proceeding under section 145 Cr.P.C. on the ground that the dispute between the parties is pending before civil court and revenue court and interim orders were in operation between them. In revision, the learned Sessions Judge disagreed with the assertions on the ground that the orders passed by the revenue and civil court for maintaining status-quo did not and could not effectively prevent the parties from fighting for the land and property in dispute and therefore the apprehension of breach of peace remained. The High Court observed in para- 3 and 4 as below:-
"3. It is not disputed that the orders passed are only for maintaining status quo. The order passed by the civil court has already expired, as it was not extended further. The purpose and objects of the proceedings under section 145 Cr.P.C. is to maintain the law and order and to prevent the parties from taking law in their own hands which may create breach of peace. The order passed by the civil court or revenue court should be such which may effectively prevent either of the parties from entering into dispute for taking possession of the property by force. In case of an order for maintaining status quo position about possession remains vague and the parties are still left to get it decided by themselves by use of disputed property on the date the order of status quo was passed. If the proceedings under Section 145 Cr.P.C. are allowed to be dropped in such state of affairs, the objects of the preventive provisions contained in original procedure code may be defeated.
4. For the reasons stated above, I do not find it proper to make any interference in this revision. It is being left open to the parties to make an application before civil court or revenue court as the parties are advised and to pray for passing a definite order with regard to possession of the parties during pendency of the suit. If such an application is filed, same shall be considered and decided in accordance with law. After a fresh order is passed by the civil court or revenue court, it shall be open to the Magistrate to pass a fresh order. Subject to aforesaid observation/directions, this revision is rejected."
This view finds strength from the above judgments that it is not always that proceeding under section- 145 Cr.P.C. shall not be maintainable, if civil suits are pending.
16. Now, I come to second aspect of the matter, whether and how far this Court can interfere in exercise of powers under Article 227 of the Constitution of India. The Allahabad High Court in Premgiri vs. State of U.P. and 3 Others, decided on 18.09.2019 in Matter under Article 227 No.5579 of 2019, has observed as below:-
"It is well settled that in exercise of supervisory jurisdiction of this Court over subordinate courts, the scope is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent violation of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they act according to law. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes."
17. The power under Article 227 of judicial superintendence cannot be used to upset the conclusions of facts, howsoever erroneous they may be, unless they are so perverse and so unreasonable that no Court could have reached them.
18. In Union of India and Others vs. Himmat Singh Chahar, (1999) 4 SCC 521, it was observed that :-
"The powers under Article 227 of the Constitution of India are not equivalent to the powers of appellate authority enabling re-appreciation of evidence. The court cannot alter the conclusions merely on the ground of insufficiency of evidence to arrive at a particular conclusion."
19. Similar views were expressed in Ajaib Singh vs. Sirhind Co-operative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 and in Mohan Amba Prasad Agnihotri vs. Bhaskar Balwant Aheer, AIR 2000 SC 931.
20. In Indian Overseas Bank vs. Indian Overseas Bank Staff Canteen Workers' Union, (2000) 4 SCC 245, the Supreme Court observed that:-
"It is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere."
21. Similar views were expressed in Union of India vs. Rajendra Prabhu, (2001) 4 SCC 472 and in State of Maharashtra vs. Milind and Others, (2001) 1 SCC 4.
22. In Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675, the Supreme Court gave guidelines where it will be appropriate for the High Court to exercise its supervisory powers. The Supreme Court held that :-
"High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby."
23. Again in T.G.N. Kumar vs. State of Kerala and Others, (2011) 2 SCC 772, the Supreme Court importantly observed that the powers under Article 227 of the Constitution of India are not merely judicial but also administrative in the sense that the courts and the tribunals have to be kept within the bounds and to see that they follow the law and do not cross their jurisdictions. At the same time, the Supreme Court cautioned that such powers are to be exercised sparingly and only in appropriate cases, to keep the subordinate courts within the bounds of their authority.
24. With the aforesaid fetters of law put on the exercise of jurisdiction under Article 227 of the Constitution of India, I proceed to take upon the matter at hand.
25. In order to appreciate the matter in controversy better, the broader contours of case before the Court are worth consideration.
i. In the instant case the petitioner contended that the disputed land devolved on him in the following manner:-
Initially Ram Poojan, the Manager of Patel Memorial Inter College in whose name the land was registered in revenue records executed a registered sale deed in favour of Narendra Pathak and Ratan Pathak as far back as in 1980; name of Narendra Pathak and Ratan Pathak was mutated in revenue records but the same was challenged by one Ram Chet Pandey; after several rounds of litigation regarding mutation of names, a revision came to be filed before the Board of Revenue by Jai Prakash Pandey and Others against Narendra Pathak (the predecessor in interest of the petitioner), (It may be noted that Jai Prakash Pandey and Others are respondents herein). It is the case of the petitioner that the land came in the hands of Prabhakar Tiwari (the petitioner herein) through a sale deed dated 23.06.2018 from the sellers Narendra Pathak and Ratan Pathak. The name of the petitioner stands in the revenue papers since 2019. The petitioner has said that the dispute arose when he started constructing a boundary wall on the disputed land.
ii. On the other hand, the petitioner's claim has been disputed by the respondents on the basis of averment that their predecessor in interest Ram Poojan had no right to transfer the land to Narendra Pathak and Ratan Pathak as his predecessor in interest, Smt. Shiv Kali had no right to transfer the same in favour of Ram Poojan through a gift deed. The litigation has already run as regards the gift deed by said Shiv Kali Devi, by filing an Original Suit No.204 of 1960. Suit No.204 of 1960 "Shivkali vs. Patel Memorial Higher Secondary School, Ramsurat Pandey and Others", was dismissed in 1983.
iii. From the counter affidavit and other papers on record, it appears that the ownership claims is highly contested and is deep into legal wrangles and niceties.
iv. This is not disputed that Jai Prakash Pandey (the respondent no.4 herein) has already filed a Suit No.1381 of 2018 for cancellation of the sale deed executed in favour of the petitioner- Prabhakar Tiwari, when the Inspector Incharge Atraulia, Azamgarh submitted a report as regards apprehended breach of peace on 25.02.2020. Prolonged rounds of litigation have already undergone. In fact, litigation started from 1960, where Smt. Shivkali filed a suit against Ram Poojan. The mutation proceeding started by Ram Poojan was dismissed in 1967. The latest one is a civil suit between the two sides which had already commenced in 2018. Though the contention of the petitioner is that in this suit, no permanent injunction has been claimed and this suit only seeks a relief of cancellation of sale deed, hence is of no utility as far instant proceeding is concerned. The impugned order was passed in 2021.
v. This is noteworthy that none of the sides has, before this Court produced any copy of the plaint or the written statement or any order interim or otherwise, passed by the civil court, which may support the claim of one side or the other. The fact remains that not only matter of title but also of possession is highly contested.
vi. It is pertinent to point out that the Executive Magistrate has given a finding that none was in actual possession since last 40 years.
26. From the papers on record, few other relevant and disputed facts are revealed, which are as below:-
That disputed land allegedly belonged to one Mahaveer Pandey and from him it was inherited by his four sons (including one Ram Bali Pandey) and thereafter it went to Ram Chet Pandey. Ram Chet Pandey had contested the claims of mutation done on 16.01.1992, whereby in place of name of seller, Patel Memorial Higher Secondary School through Manager Ram Poojan, name of buyers Narendra Pathak and Ratan Pathak was entered in revenue papers. Smt. Shivkali was wife of Ram Bali Pandey and they had no son, hence she had no right to execute a gift deed, therefore no title was ever conveyed to Ram Poojan, the Manager of said school. This is the case of the opposite side that when Ram Poojan came to know that the gift deed was void, therefore he executed sale deed in favour of Narendra Pathak and Rathan Pathak in 1980. It may be noted that the petitioner Prabhakar Tiwari claims ownership and possession from Narendra Pathak and Ratan Pathak.
27. In my view all facts and the case presented by both the sides lead to an irresistible inference that the title to the property is mired in controversy. It requires much legal pains to be taken, to come to a concrete conclusion.
28. Perusal of the order shows that the court of Sub-Divisional Magistrate followed the prescribed procedure; called the parties to file the written statements, took the evidence of both the sides and came to a conclusion that none of the parties was in 'actual possession' of the property in dispute. This finding was given on the basis of evidence. This Court in exercise of powers of superintendence is definitely not supposed to go for deep and meticulous assessment of evidence of facts and arrive at a conclusion of its own, unless there are extraordinary circumstances impelling this Court to do so. The conclusions arrived at by Sub Divisional Magistrate court and affirmation of the finding by the revisional court appears to have been reached at, on the basis of material before them. They have exercised their discretionary judicial powers. This also came into notice of the court below that the dispute erupted only when one side tried to raise a boundary wall and other side objected. The court of Sub-Divisional Magistrate also noticed that there is peace for the time being, only because of the order passed under section 145 Cr.P.C., otherwise some serious incident could have taken place.
29. I went through all the papers on record. Neither of the parties could show any material, which may be of good assistance to court in reaching an inference as to who was, the petitioner or the respondent, in actual possession on the date notice was issued. Neither disputed gift deed, sale deed or other papers regarding title, nor entries in revenue record are sufficient to establish the possession of any particular party on the disputed land. The entries in the revenue record are no doubt important, but they are more important for the purpose of collection of revenue. The Executive Magistrate had a heavy burden on his shoulders to decide whether any, if so, which party was in actual possession. There is probability that any error made in such adjudication may not only ignite fresh criminal incidents and may commence another round of civil and criminal litigations and therefore frustrate the very purpose of drawing proceeding under sections 145 and 146(1) Cr.P.C.
30. It may be noted that the scope of proceeding under section 146(1) Cr.P.C. has been left open by the substantive provision of section- 145(4) Cr.P.C. itself.
Section 145(4) Cr.P.C. is as below:-
"4. The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, "if possible", decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute: ..........
The use of word "if possible" is significant. The legislature was conscious of the fact that there may be cases where it may not be possible for the Executive Magistrate to actually draw an inference that which party was in de-facto possession. When the Magistrate is unable to decide this issue of actual possession and the case is one of emergency, he may proceed to attach the subject of dispute.
31. The contingencies which open the field for operation of section- 146(1) Cr.P.C. must be understood properly.
(i) Whether the case is one of emergency?
(ii) Whether none of the parties were found in such possession as is referred to section 145 Cr.P.C.?;
(iii) Whether the Magistrate is unable to come to a definite conclusion as regard which party was in possession?
Where any of such contingencies exist, the Executive Magistrate may proceed to attach the property until a competent court determines their rights. It may be noted that such an order, though temporary in nature shall remain in force till the competent court decides the question that which of the parties is entitled to possess that property. There is a very important proviso which empowers the Magistrate to withdraw the attachment any time in case no longer likelihood of breach of peace could be found .
In the instant case, the Magistrate found one of the contingencies to exist and the revisional court agreed with the same. I do not find any good cause to interfere in the inferences drawn by the courts below.
32. In this view of the matter, the order of the City Magistrate cannot be faulted. It is not at all the function of the revisional court or this Court, in exercise of powers under Article 227 of the Constitution of India to go through the evidence once again and decide upon the de-facto possession.
33. As far as the argument of the petitioner that a supplementary report given by the police station incharge was not taken into consideration is concerned, this submission does not appear to be correct. The court of the Sub Divisional Magistrate had perused the supplementary report, while giving a finding that none of the parties was found in possession. The parties have all the opportunity to press their claims before the civil court.
34. I do not find any infirmity of such nature in the impugned orders so as to justify the exercise of powers under Article 227 of the Constitution of India and therefore, petition is dismissed.
35. Copy of the order be immediately certified to the court concerned.
Order Date :- 9.10.2023 Saif/Vikram/-