Gauhati High Court
Taijuddin Ahmed vs Thaneswar Talukdar And 2 Ors. B on 6 September, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010166982022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./847/2022
TAIJUDDIN AHMED
S/O LATE HATIM ALI
R/O VILL- GOSAIGHAT (KALITAKUCHI)
P.S. HAJO
DIST. KAMRUP, ASSAM
VERSUS
THANESWAR TALUKDAR AND 2 ORS. B
S/O LATE CHANDRA TALUKDAR
R/O VILL- GOSSAIGHAT (KALITAKUCHI)
P.S HAJO
DIST. KAMRUP, ASSAM
2:SMT. JAYA TALUKDAR
D/O LATE CHANDRA TALUKDAR
R/O VILL- GOSSAIGHAT (KALITAKUCHI)
P.S HAJO
DIST. KAMRUP
ASSAM
3:MALOTI KUMAR
W/O LATE NANI KUMAR
R/O VILL- GOSSAIGHAT (KALITAKUCHI)
P.S HAJO
DIST. KAMRUP
ASSA
Advocate for the Petitioner : MS. T SOM
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 06.09.2022 Heard Ms. T. Som, learned counsel for the petitioner.
2. By filing this criminal petition under section 482 Cr.P.C., the petitioner has prayed for quashing of (i) the order dated 21.03.2022, passed by the learned Sessions Judge, Amingaon in Crl. Revision No. 12/2020, and (ii) order dated 15.02.2020, passed by the learned Executive Magistrate, Kamrup, Amingaon, in case No. 8m/2010 under section 145/146 Cr.P.C.
3. The learned counsel for the petitioner has submitted that the respondents, as the first party, had instituted a proceeding under section 145/146 Cr.P.C., which was registered before the Court of the learned Executive Magistrate as Case No. 8m/2010. It was alleged in the said petition that father of the respondents had purchased a plot of land from Nani Kumar Ram, husband of Maloti Kumar its lawful owners by executing a hand note at a consideration of Rs.5,000/- and that they have been cultivating the said land without hindrance from any quarter. However, on 31.01.2010, the petitioners along with some anti-social people, made an attempt to enter into their land and threatened them with dire consequences. Hence, the respondents had instituted the said proceeding.
4. The said case was contested by the petitioner and in defence, it was stated that Maloti Kumar, wife of late Nani Kumar had applied for and got conversion of annual patta land, covered by annual patta no. 77/73 in the name Page No.# 3/7 of Nani Kumar, into periodic patta land and accordingly, she was occupying land measuring 3 katha- 10 lechas, covered by dag no. 637 of patta no. 567 of village Kalitakuchi, under Hajo Mouza. She had sold the said land to the petitioner, namely, Taijuddin Ahmed vide sale deed no. 40/2012 dated 12.01.2010 and handed over the possession. Thereafter, the land was mutated in his name and he had constructed a residential house thereon and started residing with his family. The learned Executive Magistrate, by order dated 23.12.2011, had dropped the proceeding initiated by the respondents herein. The said order was challenged by the respondents by filing Crl. Revision No. 6/2012 and the learned Sessions Judge, Amingaon, by order dated 09.01.2012, remanded the matter for a fresh decision in terms of section 145 Cr.P.C.
5. In the fresh adjudication, the petitioner's side had examined 3 witnesses and the respondents herein had examined 4 witnesses. Thereafter, the learned Executive Magistrate had again dropped the proceeding by order dated 15.02.2020. However, direction was issued to the Lot Mandal to identify the disputed land. The said order had been assailed by filing Crl. Revision No. 12/2020. The learned Sessions Judge, Amingaon had dismissed the said revision by order dated 21.03.2022.
6. The learned counsel for the petitioner has submitted that the petitioner had purchased the land from the actual title holder by virtue of a valid sale deed and his name was mutated in revenue records, whereas the respondents claim to have purchased the land from the husband of the performa respondent herein by virtue of an unregistered hand note. It has also been submitted that having dropped the proceeding, the learned Executive Magistrate could not have issued any direction for identification of the disputed Page No.# 4/7 land. Hence, it was submitted that the impugned orders were conflicting orders. It has been submitted that the finding by the learned Executive Magistrate that the respondents were in possession of the land was without considering the materials and evidence on record and that more importance was given to the unregistered hand note over the registered sale deed to determine possession. The learned counsel for the petitioner has referred to the grounds on which this criminal petition has been preferred.
7. On a perusal of the impugned order dated 15.02.2020, it is seen that the learned Executive Magistrate had relied on a police report dated 06.02.2020 to the effect that the petitioner had tried to dispossess the respondents from the disputed land. The said learned Court had considered the hand note dated 09.05.1977 by Nani Kumar, husband of Maloti Kumar as well as revenue payment receipts since the year 1970 to 2009 and therefore, concluded that the title of annual patta land could not be transferred and therefore, the possession was transferred by hand note dated 19.05.1977 and therefore, it was held that the respondents had been able to prove their possession. The learned Executive Magistrate had referred to the evidence of PW nos. 1 to 4 and had held that they had proved that the respondents were in possession of the disputed land for more than 30 years. The learned Executive Magistrate had discarded the evidence of PW-2 wherein he had stated that he saw the petitioner cultivating the land since the year 2013, on the ground that the Court was examining possession prior to the date when attachment order was initially passed. The learned Executive Magistrate had observed that the petitioner (DW-
1) could not remember the date when he took over possession and that as per DW-2, the disputed land was sold to the petitioner in the year 2010 and before that Maloti Kumar possessed it. Moreover, the DW nos. 2 to 4 could not Page No.# 5/7 remember the dag and patta number of land, although they had stated the boundaries. The learned Executive Magistrate also took into account the sale deed dated 12.01.2010 and connected it with the attempt by the petitioner to take over possession of the disputed land thereafter, and that on 09.02.2010, the said proceeding under section 145/146 was initiated. It was held that even if the petitioner took possession on the strength of the sale deed, yet the taking over of the possession was held to be illegal as the respondents, who were in possession of the disputed land since 30 years had been illegally dispossessed.
Thus, possession was declared in favour of the respondents in respect of the disputed land. The attachment order was vacated and the proceeding was dropped and the Officer-In-Charge of Hajo P.S. was directed to execute the order and the Circle Officer, Hajo Revenue Circle was requested to depute a Lot Mandal for identification of the disputed land.
8. From the impugned judgment and order dated 21.03.2022, it is seen that the learned Sessions Judge had painfully examined all the materials on record and after elaborate discussion, had arrived at an independent finding to justify the order dated 15.02.2020, passed by the learned Executive Magistrate in Case No. 8m/2010. Accordingly, the revision preferred by the petitioner was dismissed.
9. On examination of the materials available on record, it cannot be said that the finding of fact recorded by the learned Executive Magistrate as well as the learned Sessions Judge was vitiated by any error apparent on the face of record or that the finding are so absurd that it is hit by the Wednesbury's principle of unreasonableness.
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10. There appears to be no material on record from which it can be inferred that there has been a serious miscarriage of justice. None of the finding recorded by the learned Sessions Judge can be said to be absurd and contrary to the well established principle of law.
11. We are unable to hold that if a hand note dated 09.05.1977 and land revenue receipts of the years 1970 to 2009 are examined for the purpose of ascertaining possession within the scope of section 145 Cr.P.C., it would amount to giving more credence to the unregistered deed than a registered sale deed. The learned counsel for the petitioner has not been able to show any case law on the point that for determining possession under section 145 Cr.P.C., no reliance can be placed on hand note and/or unregistered sale deed for annual patta land or land revenue receipts.
12. From the contents of the impugned order dated 15.02.2020, in view of the fact that the learned Executive Magistrate had directed the police to execute the order and requested for assistance of the Lot Mandal, it appears that the learned Executive Magistrate has wrongly used the words "... proceeding of the case is hereby dropped". It appears that the section 145 Cr.P.C. proceeding was merely closed on pronouncement of the final order. The said error is not found to otherwise vitiate (i) the order dated 15.02.2020 by the learned Executive Magistrate, and (ii) order dated 21.03.2022 by the learned Sessions Judge.
13. Thus, on examining the contents of both the impugned orders, this Court is of the considered opinion that this is not a case where a concurrent finding of fact in connection with the proceedings initiated under section 145 and 146 Cr.P.C. requires a re-visit in exercise of jurisdiction under section 482 Page No.# 7/7 Cr.P.C.
14. Therefore, the Court finds no merit in this criminal petition even to warrant issuance of notice on the respondents. Accordingly, this criminal petition for quashing of (i) the order dated 21.03.2022, passed by the learned Sessions Judge, Amingaon in Crl. Revision No. 12/2020, and (ii) order dated 15.02.2020, passed by the learned Executive Magistrate, Kamrup, Amingaon, in case No. 8m/2010 under section 145/146 Cr.P.C. stands dismissed in the 'motion' stage, without issuance of notice on the respondents.
15. The Registry shall transmit a copy of this order to the Court of the learned Sessions Judge, Kamrup, Amingaon, so as to make this order a part of the record of the Crl. Revision No. 12/2020.
JUDGE Comparing Assistant