K. S. LODHA, J. -
(1.)THIS revision has been filed by Moda Ram and others against the orders of the learned Sub-Divisional Magistrate, Jodhpur, dated 24. 1. 84 and 12. 3. 84 in proceedings u/s 145 Cr. P. C. By the order dated 24. 1. 84, the learned Magistrate, drew a preliminary order as also attached the property u/s 146 Cr. P. C. By the later order dated 12. 3 84, the learned Magistrate refused to vacate the attachment.
(2.)THE facts giving rise to this revision briefly stated are that the non-petitioner Shri Prithvi Raj filed an application under sections 145 and 146 Cr. P. C. before the learned Sub-Divisional Magistrate, Jodhpur, alleging that in village Jaliwara Khurd, there existed a common chowk, situated in front of the houses of the applicant as well as the non-applicants, who are petitioners in this revision, which was being used by all the villagers for the purposes like marriages, deaths etc but now the non-applicants i. e. the present petitioners were claiming this land to be their exclusive property and are trying to raise a wall around it and are using this chowk as a kiln. THE applicant, therefore, prayed that proceedings u/s 145 Cr. P. C. should be taken against the non-applicants and the property should be attached. It was on this application that the learned Magistrate after seeing the police report, passed the order dated 24. 1. 84. THE present petitioners thereafter appeared and filed their objections or reply claiming that the provisions of section 145 Cr. P. C. were not applicable in the present case as according to the applicant's own showing the dispute was not with regard to possession of the land but with regard to its user. THEy also alleged that there was no apprehension of breach of peace nor was there any such imminent danger and that the non-applicants had been in peaceful possession of this property since long. It was also mentioned that a revenue suit had already been filed in respect of this land and, therefore, also the proceedings u/s 145 Cr. P. C. were uncalled for. After hearing the parties, the learned Magistrate refused to vacate his earlier order, Hence this revision.
I have heard the learned counsel for the parties and have gone through the record.
A preliminary objection has been raised by the learned counsel for the non-petitioners that the petitioners could not have filed this revision against the orders of the learned Magistrate direct before this Court without first moving the Sessions Court. It was urged that even though the powers u/s 397 can be exercised concurrently by the Sessions as well as this Court, it is the duty of the party to approach the lower court first. In this connection, reliance was placed upon a decision of this Court reported in Hajia Lishar v. State of Rajasthan (l. On the other hand, the learned counsel for the petitioners urged that a revision can directly be entertained by this Court against the order of the learned Magistrate and the petitioner is not bound to approach the Courts of Sessions. It was contended that the powers u/s 397 are concurrent but once, a party approaches the Court of Sessions and does not get the relief, he is debarred from filing a second revision before this Court u/s 397 and, therefore, the party has a choice either to approach the Court of Sessions or this Court direct. Reliance in this connection was placed upon Jagir Singh vs. Ranbir Singh (2), In re Puritipati Jagga Reddy (3), Satyanarayan v. Kantilal (4), Kesavan vs. Sreedharan (5) and Mohan Lal vs. Prem Chand (6 ). Having given my careful consideration to the rival contentions, I am of the opinion that this revision can be entertained. The authority of this Court in Haji alisher's case (supra) is clearly distinguishable because that was not a case u/s 397 Cr. P. C. but a case u/s 438 Cr. P. C. There is no bar to a second application u/s 438 Cr. P. C. being entertained by this Court after one has been rejected by the Court of Sessions whereas there is clearly such a bar u/s 397 (3) Cr. P. C. and a second revision at the instance of that party which approached the Court of Sessions would not lie before this court. Further, when such a revision would not lie recourse to section 482 Cr. P. C. or even Article 227 of the Constitution would be very difficult, as held in Jagir Singh's case (supra) and In re Puritipati Jagga Reddy's case (supra ). It may also be mentioned here that in Sukh Lal vs. State (7), this Court had held that first approach to the Court of Sessions was essential but that was under the old Cr. PC. and cannot now be regarded as good law in view of the present provisions of sec. 397 Cr. P. C. The matter has been fully discussed in Satyanarayan's case (supra), Kesavan's case (supra) and Mohan Lal's case (supra) and I need not repeat the discussion. In this view of the matter, 1 am in agreement with the authorities relied upon by the learned counsel for the petitioners and hold the revision to be competent.
Coming to the merits, it may at once be stated that the dispute in this case does not appear to be in respect of possession of the land but is merely in respect of the user of the land and, therefore, provisions of section 145 Cr. P. C. do not apply. According to the application filed by the non-petitioner Prithvi Raj before the learned Magistrate himself there appeared to be no dispute about the possession of the land as such in as much as the applicant himself alleged that this land jointly belonged to all the tesidents of the village and was being used by them for the purposes of marriages and deaths. The applicant Prithvi Raj does not claim exclusive possession over this land and the matter is limited only to the user of the land by him along with the other villagers. The learned counsel for the non-petitioner, however, urged that even if some party claimed joint possession and the other one claimed exclusive possession, the matter is one u/s 145 Cr. P. C and in this connection, he placed reliance upon Manak Chand vs. State (8), a decision of this Court but in my opinion, that case has no application to the facts of the present case because in that case, what was in dispute was the ownership as well as the possession of the land. The Court had observed as under: - "if the right to use land is claimed as an incident of ownership and it is alleged that a dispute has arisen as regards as such user, it would be really a dispute relating to the land itself Hence where both parties claim title and possession over and right to use the property and there is likelihood of breach of peace, the Magistrate should proceed under s. 145 and not under sec. 147. " Here as already stated above, there is no dispute about the title of the land in dispute as the applicant does not claim title to the land, he only claims the right of user.
It further appears that the dispute about this land has already gone to the revenue court and the rights of the parties can conveniently be decided there. The recourse to section 145 Cr. P. C. in the circumstances of this case for that reason also does not appear to be proper. In these circumstances, in my opinion, the learned Magistrate was not justified in taking proceedings u/s 145 or 146 Cr. P. C.
(3.)THE revision is, therefore, accepted and the orders of the learned Sub-Divisional Magistrate, Jodhpur, dated 24-1-84 and 12-3-84 are set aside. .