Decided on July 25,1986

Sattar Rather Appellant
KHATJI Respondents


M.A.SHAH, J. - (1.) THE Criminal Revision is directed against the order passed by Tehsildar, Executive Magistrate, Beerwa on February 8, 1984 and confirmed by Sessions Judge, Badgam in Criminal Revision No. 114 of 1984 on November 30, 1984 for the setting aside of the orders passed under the provisions of Section 45 of the Code of Criminal Procedure. On an application flied under Section 145 (1) of the Code of Criminal Procedure by respondent before Executive Magistrate alleging therein a dispute regarding land comprising four kanals in survey No. 2527/1071 village Khag which was also by an order under Sub-section (4) of Section 145 of the Cr.P.C., placed under attachment vide order passed by the Executive Magistrate on February 8, 1984, and was finally directed to be delivered to the respondent by the learned Executive Magistrate. The petitioners being aggrieved against the said order filed a revision petition before the learned Sessions Judge, Badgam, who vide his order dated November 30, 1984 upheld the order passed by the Executive Magistrate and dismissed the revision filed by the petitioner. The present revision arises out of the above quoted orders. The revision is contested by the respondent.
(2.) LEARNED counsel for the petitioners attacked the impugned orders mainly on the ground that no preliminary order as envisaged under Section 145 (1) of the Cr.P.C. has been drawn by the learned Executive Magistrate and secondly that, the total land comprised in Survey No. 2527/1071 is 25 kanals and 16 marlas, which forms part of the joint possession of the respective parties, the land being joint, the proceedings before the learned Executive Magistrate under Section 145 of the Cr.P.C. and the attachment of the land in dispute was without jurisdiction. It is pointed out that even the respondent has stated that she is in joint possession of the land with the petitioner. Similarly the findings arrived at by the learned Sessions Judge are attacked reiterating the above said infirmities. It is vehemently argued by showing the order impugned passed on February 8, 1984 that the earlier order does not speak of any satisfaction as envisaged under section 145 (1) of the Cr.P.C. not in indicates the satisfaction arrived at by the Magistrate with respect to the apprehension of breach of peace regarding the land in dispute. Such an order being without any basis is liable to be quashed. In support of his contention, learned counsel for the petitioner placed his reliance on an authority of this court reported in AIR 1965 J&K 69 (Ali Bagban and others, Petitioners v. Ghulam Mohi-ud-Din Ahaneer Opposite party) as well as on S.L.J. 1980 J&K 320 (Abdul Aliad Lone v. State), in order to emphasise his point the duty of the Magistrate how to frame a preliminary order. In support of the second contention on the ground that the property being joint which is alleged to have been admitted by the respondent that the property in dispute is joint that such a property cannot be directed to be attached. Reliance is placed on AIR 1964 J&K 1, Pir Ghulam Shah, Appellant v. Pir Meerajuddin and another Non-applicant). In reply to the above said contention learned counsel for the respondent pointed out that the order impugned passed on February 8, IQ84 by the Executive Magistrate is based on the preliminary order passed by the Magistrate on 4.7.1980 which was fully contested by the petitioners and they after having obtained the full opportunity of putting in their defence the documents as well as cross-examining the witnesses have no right to agitate the infirmity in the preliminary order, moreover, no prejudice has been caused to the petitioners even if for the sake of argument there is any infirmity in the preliminary order objection cannot be allowed to stand at such a late stage. Regarding second contention it is submitted that on facts, it has been found by the learned Magistrate and also the learned Sessions Judge that the property in dispute was not jointly owned the respondent has never admitted that the property in question is joint on the contrary it has been found that the respondent was in exclusive possession of four kanals of land and hence under the circumstances the attachment order cannot be called into question. Lastly it is also submitted that there being no jurisdictional error, the order cannot be interfered with in revision and if any irregularity is found, the same is curable under section 537 of the Cr.P.C. Having heard the rival arguments and on perusal of the record, I do not find that the preliminary order passed on 4.7.1980 by the. Executive Magistrate falls short of any legal requirement. On perusal of the order, I find that the satisfaction of the Magistrate regarding apprehension of the breach of peace, the order which has been communicated to the petitioners, it contains that the petitioners are bent upon to dispossess the respondent and that the respondent (petitioner) in that case has every apprehension of the breach of peace as her life and property is in danger, etc. etc. and thus I find no infirmity in the order. The said order fulfils the requirement of Section 145 (1) of the Cr. P C. which is contained on the reverse of page 45 of the file. The criteria laid down in 1980 S. L.J. 320. (supra) how to frame a preliminary order on the facts of the present case, in my opinion stands fully satisfied. It states the facts of the case indicating the survey numbers, about which the dispute exists, the area of the land, the satisfaction of the Magistrate that such a dispute exists over the possession of the property, which is likely to occasion breach of the peace asking the petitioners to put in their respective statements, Thus the order does not travel beyond the provisions of law Proviso (3) of Sub Section (4) of Section 145 of the Code of Criminal Procedure empowers the Magistrate that if he considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section If the Magistrate having been satisfied after passing the preliminary order that the case is one of emergency may simultaneously issue an order for the attachment of subject of dispute. In the instant case in the very order passed under section 145(1), if the Magistrate passes an order of issue notice of show cause as to why the subject of dispute. land in the present case, be not attached, the order cannot be made ineffective simply on that account. On the facts and circumstances of the present case, the authority AIR 1965 J&K 69 (supra) where the order of attachment was passed before issuing preliminary order can be pressed into service.
(3.) ADVERTING to the second contention regarding joint property, I do not find from the record that the respondent any where admitted that the subject of dispute, i. e. four kanals of land is jointly owned and possessed by the party on the contrary there is a clear finding on the basis of record by the learned Sessions Judge based on the findings arrived at by the Executive Magistrate in the following words : "The Tehsildar, Executive Magistrate has come to the conclusion that the respondent was in possession of the land to the exclusion of the petitioners. The evidence on the record discloses that the respondent has been in the exclusive possession of the disputed land which falls to her share, to the exclusion of the petitioners. Thus the land was not jointly owned and possessed by the parties." On the face of the abovesaid finding, the authority relied on by the learned counsel for the petitioners, A. 1. R. 1964 J&K I (supra) is clearly distinguishable. Nothing contrary has been shown by the learned counsel for the petitioners to hold against the said findings. Moreover, in a revision before the High Court, it is difficult to upset the concurrent findings of fact with respect to possession, the contention has no legs to stand.;

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