Allahabad High Court
Smt. Tulsa Devi vs Amar Nath And Ors. on 28 August, 1995
Equivalent citations: 1996CRILJ1761
ORDER S.C. Jain, J.
1. This revision petition is directed against order dated 11-2-1991 passed by Sri O.N. Singh, Sub-Divisional Magistrate, Sadar, Mirzapur in case No. 12 of 1983/1/91 under Section 145, Cr.P.C. holding possession and title of the respondents on the land in dispute and releasing the same in their favour.
2. The dispute is with respect to Chak No. 71 constituted out of plots Nos. 114,124-A, 124-B, and 113 sitaute in village Bidauli district Mirzapur, and Chak No. 20 constituted of plots Nos. 112 and 114/ 240 of the same village.
3. Admittedly, this property belonged to one Mahavir, deceased. Smt. Gujrati was alleged to be the widow of Mahavir. According to party No. l, Smt. Tulsa Devi, Gujrati wife of Mahavir absconded and she was not traced out and, therefore, she being her niece came in possession of the said property as lawful heir, whereas party No. 2, Amar Nath and another, alleged to be lawful owner and in possession of the said property having purchased the same from Smt. Gujrati by a legal sale deed for lawful consideration. As there was apprehension of breach of peace between the parties for the said piece of land proceedings under Section 145, Cr.P.C. were initiated on the report of Station Officer of the police station concerned. Sri G.S. Tripathi, Sub Divisional Magistrate Sadar, Mirzapur, in case No. 12 of 1983 under Section 145, Cr.P.C. passed an order on 1-7-1983 against which party No. 1, Smt Tuisa Devi, filed a criminal revision No. 1287 of 1983 in this Court and Hon'ble Mr. Justice V.P. Mathur heard the said revision and by his order dated 10-8-1988 remanded back the case for fresh decision on merits observing that :
"In my opinion, it is a fit case which should go back to the learned Magistrate for re-decision on merits. Consequently, the revision is allowed and the order dated 1 -7-83 passed by Sri G.L. Tripathi, Sub Divisional Magistrate, Sadar, Mirzapur, is set aside. The case shall go back to the Magistrate concerned for re-decision according to law. The parties shall be free to adduce oral-and documentary evidence on the question of possession on the date of passing of the preliminary order and two months prior to it. The question of title may also be incidentally looked into. If the parties so like, the evidence already on record may be read and then the question of possession shall be decided at an early date."
In persuance of that order the Sub Divisional Magistrate. Sadar. Mirzapur. Sri O.N. Singh, reheard the parties and allowed the parties to produce on record varios documents and to lead any further evidence and after hearing the parties passed the impugned order on 11-2-1991, whereby he held party No. 2, Amar Nath and another, to be in possession of the land in dispute having title over it.
4. Aggrieved, party No. 1, Smt. Tulsa Devi, challenged that order dated 11-2-1991 of Sri O.N. Singh, Sub Divisional Magistrate, Sadar, Mirzapur, by filing this revision petition.
5. The learned counsel for the applicant, namely, Sri Vinod Prasad, drew my attention towards the impugned order pointing out that the Sub-Divisional Magistrate has not discussed the real point for determination in the case and his judgment is not a judgment in the eyes of law. The finding of the Sub Divisional Magistrate is against the evidence on record. Smt. Tulsa Devi was never sent to jail in connection with murder of Shambhu Nath. She was not even accused in the said case and the finding of the Sub Divisional Magistrate that as the applicant was in jail after 29-6-1976 she could not be in possession is against the facts on record. He also pointed out that the Sub Divisional Magistrate did not at all consider the documentary evidence led by the applicant to show her possession over the land in dispute. According to him a perusal of the order dated 24-11-1972 of Deputy Director, Consolidation passed in Case No. 4512 of 1972 (Mata Prasad v. Gujrathi) clearly shows that the land in dispute was in possession of Gujrali wife of Mahabir Prasad and the alleged Gujrali from whom party No. 2 purchased the land is a fake and fictitious lady, who had neither any concern nor had possession over the disputed land. The alleged Smt. Gujrati from whom the respondents Nos. 1 and 2 have allegedly purchased this land is not the widow of Mahabir Prasad but is the widow of Bikkoo resident of Dubepur Basari and she has no concern, right, title and interest in the land in dispute. The findings of the consolidation Courts have become final and the findings of the Sub-Divisional Magistrate which are in contradiction with the findings of consolidation Courts are illegal. According to the learned counsel Sub Divisional Magistrate did not take into consideration the irrigation receipts of the previous years which go to show that the land in dispute was cultivated by Smt. Tulsa Devi and her sons and they paid the irrigation charges. The other relevant papers produced by the applicant before the Sub Divisional Magistrate were not taken into consideration and were not even discussed. He has not appreciated the correct position of law and that he has not given finding in respect of the fact as to who was in actual possession of the land in dispute on the date of preliminary order or two months before institution of criminal proceedings under Section 145. Cr.P.C. The Magistrate was only to give findings about possession over the land in dispute on the date of order or two months prior to that. He was not supposed to give a finding in respect of title, which is the jurisdiction of civil Courts. The Magistrate has also not taken into account the power of attorney dated 5-6-1933, wherein Mahabir Prasad Pathak had identified Tulsa Devi as her niece. The Sub Divisional Magistrate has also not taken into account various documents and evidence on record which prove beyond doubt that the sale deed was obtained by the respondents by impersonating Smt. Gujrati wife of Mahabir and as such the order of the learned Sub Divisional Magistrate is wholly illegal and without jurisdiction.
6. The learned counsel for the respondents, Sri R.P. Tripathi, countered the arguments advanced by the learned counsel for the applicant and stated that the order passed by the learned Sub Divisional Magistrate is a detailed one in which each and every aspect of the matter has been considered. The documents relied upon by the respective parlies have also been mentioned and that in revision the evidence cannot be re-appreciated. According to the learned counsel the sale deed in favour of the respondents executed by Smt. Gujrati is a legal document for lawful consideration and by virtue of this document the respondents are in possession over the land in dispute in their own rights and that no interference is needed in the impugned order.
7. Reliance has been placed on the case of 'Bhagwati Prasad v. State of U.P. reported in 1983 Criminal Law Journal NOC 216 (Allahabad).
8. It is settled principle of law that in the proceedings under Section 145, Cr.P.C. the Magistrate has not to enter into questions of title or the right to possess. The foundation of his jurisdiction is the existence of a dispute likely to cause a breach of the peace. It is the factum of possession which is essential in a proceeding under this section and not the question of title. A Magistrate has no authority to restore to possession a person alleged to have been illegally dispossessed. His duly is to determine actual possession and not rightful possession. In proceeding under this Section the Magistrate is concerned only with the question of actual physical possession and he must determine that question irrespective of the right of possession. The expression "actual possession" is plain and unambiguous and has no reference to any right to possess. The Magistrate need not even record findings which may indicate title to the property. The Magistrate has to decide the question of possession without reference to the merits of the claims of any of the parties to a right to possess the subject matter of dispute. Where he considers such merits of the title of the parties he exceeds his jurisdiction. The criminal Court will have to maintain the possession of even a trespasser, if he is found to be in actual possession of the property for more than two months before the date of the preliminary order. The Magistrate may use evidence of title merely to guide and assist his mind in coming to a decision upon the questions of possession, but if he determines the question of title alone, he is clearly doing that which the law has forbidden him to do. The Magistrate may, if necessary, take and consider evidence of title to enable him to decide the question of actual possession, but proof of title is not prooft of actual possession.
9. The findings of Magistrate in the impugned judgment seem to be against the statutory principle of law. His observations in the said judgment read as follows :
"Yadi thori der ke liye yah maan bhee liya jay ki shrimati Tulsa wa uske pariwar walon ne shakti ke bal per aaraji nijai per kabja ker liya to bhee swatwa. bihin kabje ka koi mahatwa hee nahin hota...."
The finding of the Magistrate that he could not hold the applicant in possession without upholding her title is against the principle of law. as contained in Section 145, Cr.P.C.
10. Whatever may be the position, one thing is very much clear after going through the impugned judgment that Magistrate has ignored the documentary evidence which was brought on record and he decided the matter without proper consideration of evidence on record. He has not touched any documentary evidence and without discussing them arrived at a conclusion as to which of the parties was in actual possession of the land in dispute on the date of preliminary order or two months prior to that. The learned Magistrate has not dealt with the evidence on the point of possession as is apparent from his judgment.
11. In my view, this case should again go back to the learned Court below for a fresh decision on merits with the direction that he should discuss the evidence available on record to find out as to which of 'the parties was in actual possession on the dale of preliminary order or two months prior to that. The Magistrate should determine this question irrespective of the right of possession.
12. Consequently the revision petition is allowed and the order dated 11-2-1991 passed by the learned Sub Divisional Magistrate. Sadar, Mirzapur in case No. 12 of 1983/1 of 199l under Section 145 Cr.P.C. is set aside. The case shall go back to the Magistrate concerned for his decision according to law in view of the observations made above.
13. It is made clear that the case has already taken a long time as the proceedings are pending from the year 1976. the learned Magistrate shall proceed with it and dispose of the case expeditiously preferably within a period of three months from the date when certified copy of this order is produced before him. Needless to say that the parties will co-operate with the Sub Divisional Magistrate concerned for the early disposal. The Sub Divisional Magistrate would give opportunity to the parties 'learned counsel to argue their respective cases in the light of the evidence available on record.