Decided on January 30,1984

Mohan Kanwar Appellant


N.M.KASLIWAL,J. - (1.)THIS revision by Smt. Mohan Kanwar w/o Gordhan Singh is directed against the order of learned Sessions Judge, Jaipur District Jaipur, dated 16th September 1982, setting aside the order of learned Sub -Divisional Magistrate, Amer, dated 3rd August, 1982, passed under Section 146(1) Cr. PC.
(2.)SMT . Mohan Kanwar submitted a complaint on 13th March, 1982 in Police Station, Chandwaji to the effect that her husband Gordhan Singh had died long back and Khatedari of Khasra Nos. 646 and 650 measuring 27 Bighas 19 Biswas had been recorded in her favour. She was getting the land cultivated through her brother -in -law Bhagirath Singh. It was further mentioned that her another brother -in -law Hanuman Singh and his sons Prabhu Singh, Bhawani Singh Mahaveer Singh and their Hali Gheesa were interfering in her possession and used to take away the crop by force. The Station House Officer recorded the statement of Smt. Mohan Kanwar and Bhagirath Singh and submitted a complaint in the court of Sub -Divisional Magistrate, Amer on 5th July, 1982. The Station House Officer in his report submitted that the land in question was in the Khatedari of Smt. Mohan Kanwar. Gordnan Singh had no son. He had one daughter Bhanwar Kanwar and she was married during the life time of Gordnan Singh. After the death of Gordhan Singh, the Khatedari of the land was recorded in the name of Smt. Mohan Kanwar. Party No. 2 i.e. Prabhu Singh was taking a stand that after the death of Gordhan Singh turban was tied on his head and as such he was the heir and successor of the land left by Gordhan Singh. This fact was denied by Smt. Mohan Kanwar. It was further mentioned in the report by the Station House Officer that with regard to this very land cases No. 62/80 under Section 147, 447, and 427 IPC, 49/81 under Sections 147 and 323 IPC and 36/81 under Section 325 IPC were pending trial. Thus, there was a continuous dispute between the parties with regard to the land in question since 1980 and both the parties were bent upon killing each other. It was further submitted in the report that time for sowing the crop was coming very near and there was a possibility of some untoward incident being committed with regard to the possession over the land in question. On this complaint a preliminary order was drawn by the learned Sub -Divisional Magistrate on 9th July, 1982 under Section 145(1) Cr. PC. The parties were directed to put forth their claims on 28th July, 1982. In the mean time on 26th July, 1982 the Station House Officer submitted a report that there was imminent danger as to breach of peace between the parties and as such he prayed that an order of attachment should be passed under Section 146(1) Cr. PC. No order was passed on that day as the case was already fixed for 28th July, 1982 and this application was also kept for orders on 28th July, 1982. On 28th July, 1982, the notice had not returned after service. The learned Sub -Divisional Magistrate took into consideration the material on record as well as report of the Station House Officer and passed an order attaching the land in dispute under Section 146(1) Cr. PC on 3rd August, 1982. The non -applicant Prabhu Singh aggrieved against the aforesaid order submitted a revision before the learned Sessions Judge Jaipur District, Jaipur. The learned Sessions Judge set aside the order of the learned Sub -Divisional Magistrate taking in view that the Station House Officer took no steps for getting the summons served on the non -applicants and further that no untoward incident had taken place between 13th March, 1982 to 26th July, 198 as such there was no ground or justification for attaching the land in dispute. It was further observed by the learned Sessions Judge that though the Station House Officer in his report had mentioned that the time for sowing the crop was coming very soon but it remained undisputed that at the present moment crop was standing on the land in question.
It was contended by Mr. Pareek, learned Counsel for the petitioner, that the learned Sub -Divisional Magistrate was the competent officer to consider the question regarding maintenance of peace and he had taken into consideration the report of the concerned Station House Officer that there was imminent danger as to breach of peace over the land in question and the learned Sessions Judge has no jurisdiction to interfere with such an order. It was further submitted that according to the report of the Station House Officer it was clear that criminal cases were pending between the parties with regard to this very land and if the Sub -Divisional Magistrate was satisfied on the material available on record that there was emergency then in that case it was not necessary for him to await the service of notice on the party No. 2. It was also submitted that all along after the death of Gordhan Singh, the land has been shown in revenue records in the possession of Smt. Mohan Kanwar Girdawaris are done in the name of Smt. Mohan Kanwar and she is paying the land revenue and Khatedari of the land is also recorded in her favour. It was also submitted that the passbook of the land was also in the name of Smt. Mohan Kanwar and at no point of time the land in question was ever shown in possession of Prabhu Singh in the Revenue record.

(3.)ON the other hand, Mr. S. D. Sharma, appearing for Prabhu Singh contended that the Sessions Judge has considered the entire material on record after bearing the arguments of both the sides had passed the order on 16th September, 1982 and there is nothing wrong or illegal in the said order so as to call for any interference by this Court.

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