JAGAN NATH Vs. GOKAL CHAND
LAWS(J&K)-1993-7-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 23,1993

JAGAN NATH Appellant
VERSUS
GOKAL CHAND Respondents

JUDGEMENT

- (1.)THE dispute between the parties pertains to the land measuring 11 kanals and 15 marlas covered by survey Nos. 254/191/6, 255/191/6, 257/191/6, 257/191/6, 258/7 and 261/7 situate in village Patyeli tehsil Jammu. Respondent Gokal Chand filed two petitions under Sec. 145 Cr. P. C. against the petitioners herein before the Addl. District Magistrate, Jammu,/ who, vide his order dated 7.11.1990 held that non -applicant No. 3 before him was not in possession of the land in dispute two months prior to the passing of the preliminary order and had tried to take possession of the land without due process of law. It was further held that the applicant was in possession of the land in dispute two months prior to the passing of the preliminary order and was entitled to retain possession unless dispossessed in due course of law. Aggrieved by the order of the trial magistrate, the petitioners herein filed criminal revision petitions and the learned Addl. Sessions Judge, Jammu, vide his order of reference dated 25.11.1992 has recommended for setting aside the judgment of the trial court and for reference of the dispute to civil court for adjudication.
(2.)I have heard learned counsel for the parties and perused the record.
It is now well settled that proceedings under Sec. 145 Cr. P.C., are not a substitute for an action of taking possession in a matter where the dispute, in fact, pertains to title of the parties over the land. The inquiry under this section is limited to the question as to who was in possession in fact on the date of the order or two months prior thereto irrespective of the question as to the right of the parties. It has further to be shown in the proceedings that there existed a dispute with respect to the property and the dispute is such which is likely to cause breach of the peace. The proceedings under this section are only of a summary nature which are intended to provide speedy and less expensive remedy. The paramount object of this section is to prevent breach of public peace arising in respect of a dispute relating to the immovable property and the magistrate is required to settle the matter temporarily by maintaining the status quo until rights of the parties are decided by a competent court. The life of the order passed under this section is conterminous with the adjudication of rights of the parties by a civil court which when adjudicated would displace the order of the criminal court passed under this section. In a case the Calcutta High Court held that the principle on which this section is based is that where a person has the best or worst claim in the world, he should not take law into his own hands and disturb the public peace (AIR 1928 Cal 610).

(3.)THE facts of the present case are that after the death of Titroo, Gokal Chand respondent herein preferred a claim of being in cultivating possession of the disputed land irrespective of the fact that the name of Mst. Punna. W/o Titroo was recorded in the revenue record as being in possession of the property. After the death of Mst. Punna on 10.7.1989, he filed petitions under Sec. 145 Cr. P. C. on 19.81989 and alleged that the petitioners herein, namely, Dev Raj, Jagan Nath and Krishan had dispossessed him and took forcible possession of the land on 13.8.1989 besides threatening to kill him if he dared to re -enter the land. Preliminary order was drawn on 12.8.1989 and the disputed land was attached which was kept on the superdnama of Lumberdar of the village. The claimant Gokal Chand filed affidavits of S/Shri Misher Dass, Kaku Ram and Sansaro Devi. He also produced copies of Khasra Girdawari and mutations No. 68 and 85 sanctioned under Sections 4 & 7 of the J&K. Agrarian Reforms Act, The statement of Patwari as a witness was recorded at the instance of counsel for Gokal Chand. The petitioners herein filed the affidavits of S/Shri Kuldip Raj, Munshi Ram, Shiv Ram and Jagan Nath.
The learned Addl. Sessions Judge, found that the judgment of the trial magistrate did not disclose the reasons on the basis of which Gokal Chand was declared to be in possession of the disputed four survey numbers. It was further found that the trial magistrate had failed to discuss each and every affidavit filed by the parties with the result that the conclusions arrived at were based upon mere conjectures and hypothesis. It was found from the statement of the Patwari that the land was lying, fallow at the time when he visited it for attachment and that since Kharif 1971, Titru was in possession of four survey numbers as tenant and Gokal Chandâ„¢s name nowhere figured. The trial court has found, on facts, "This statement of Patwari clearly reveals that none of the parties were in proved possession on 13.8.1989 when the petitioners herein took the alleged forcible possession." In coming to the conclusion for setting aside the judgment of the trial court, the revisional court below has assigned the following reasons :

"Firstly, that the respondent Gokal Chaad has not prima facie either from the record or from the oral evidence proved to be in actual physical possession of the disputed four survey numbers; Secondly, the petitioner Krishen Lal is proved to have taken possession of the disputed four survey numbers on 13.8.89, one month after the death of Mst. punna. widow of Titroo on his own presuming that possession of the land will revert to him because no heir of Mst. Punna has survived. Thirdly, on 19th August, 1989, as per the statement of Patwari, possession of the disputed land has been given to Jagan Nath Superdar and at that time the land was fallow; Fourthly, the affidavit under sec. 145 Cr. P. C. filed by respondent on 19.8.89 and the preliminary order by the Magistrate has been drawn on 12.9.1989, on which date the attachment order has also been passed. Under law the trial court was required to decide as to which of the parties was in possession two months prior to 28.9.91 i.e. the intervening period between 28691 to 28.8.91 or at the most till 12.9.89 when the preliminary order was passed. Fifthly, the only ticklish point involved in this revision petition is as to whether the admitted possession of petitioner Krishan Kumar taken by him without respondent Gokal Chandâ„¢s consent who was legal heir (brother -in -law -Devar) of Mst. Punna on 13.8.89 can be considered a valid possession under S. 145 Cr. P.C My reply to this querry is capital "No" because mutation under Agrarian Reforms Act has admittedly been attested in the name of Mst. Punna, widow of Titroo deceased and Gokal Chand being brother -in -law (Devar) of Mst. Punna was entitled to retain possession of Mst. Punna which he was affecting by petitioner Krishen Lal in due course of law. Such being the case whether Krishan I al has endeavoured that the right to possess the disputed land accrued to him after the death of Mst Punna, on the other hand, respondent Gokalâ„¢s claim is that right to possession is in his favour and the actual physical possession of the disputed property from the evidence adduced by both the parties cannot be presumed especially when on 16.10.1989 the disputed land was fellow............ Sub -sec (4) of Sec. 145 Cr. P.C. casts a duty upon the magistrate to consider and assess the value of the written statement, affidavits and documents filed by the parties. It is obligatory for the magistrate to critically examine each and every affidavit and document produced. An omission from consideration vitiates the order. *The word "peruse" used in sub -Sec. (4) of Sec. 145 means "to go through critically, to read thoroughly or carefully" Mere mentioning the name of the persons who had sworn the affidavits or citing the documents produced, is not enough. Valid reasons have to be assigned for non -acceptance of an affidavit or a document. The revisional court below was, therefore, justified in making a recommendation for setting the order of the trial court as it has been found, on facts, that the trial magistrate had not critically examined the affidavits and the documents produced in the case.



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