Decided on December 08,1967

STATE Respondents


- (1.) IN Pushkar, near Maliyanka Chowk, Bari Basti, there is 'sthanak' of the (sic)swal community. It is marked towards the (sic)outh in the site-plan Ex. P. 1. Towards the (sic)orth site-plan there is the house of Mst. Rame (sic)hari Sunar. The plot over which this house (sic)ists was admittedly purchased by Mst. Rame (sic)hwari from Bal Krishna Brahman of Pushkar, on December 9, 1959, for Rs. 2,500. This plot is marked M in the said plan. The place of dispute comprises the spot marked CDFG in the plan in between the 'sthanak' and the house of Mst. Rameshwari. This plot measures 21' ? 8. ' The Oswal community contends that the said plot is owned and possessed by it; whereas Mst. Rameshwari Devi claims it to be her property and is included in her sale-deed executed by Bal Krishna, Ex. A. 1, dated December 9, 1959. The Oswal community also contends that the lane owned by it was used as a passage for going towards the 'sthanak' through the gate marked Y in the plan. Mst. Rameshwari Devi put up a latrine in the land and also a gate at the place marked in the plan. The Oswal community further pointed out that Mst. Rameshwari Devi was not legally authorised to block the way and build a latrine. Apprehending breach of the peace a complaint was made by the Oswal community under Section 145, Criminal P. C. On 21st December 1961, the Station House Officer, Pushkar, submitted a report to the Sub-Divisional Magistrate, Ajmer, wherein it was stated that the 'sthanak' had been in existence for the last several years. The opposite party started construction over the land, as a result of which the common passage stood blocked. This passage had been in existence for about 40 years. It was also reported by the Station House Officer that the construction made by the opposite party was illegal and that the disputed land was under lawful possession of the Oswal community. The opposite party not only encroached upon the land illegally but was adopting an aggressive attitude, which was likely to result in breach of the peace. The Station House Officer, therefore, submitted that the opposite party should be dealt with according to the provisions of Sections 145 and 147, Criminal P. C. , with a view to avert breach of the peace. On receipt of this report, Sub-Divisional Magistrate, Ajmer, drew up a preliminary order on 4th January 1962, in accordance with Section 145, Criminal P. C. , and the parties were called upon to attend his Court and to put in their statements in regard to their respective claims. The parties were also directed to produce documentary evidence or affidavits in support of their respective claims. In pursuance of the preliminary order, party No. 1, i. e. , the Oswal community, filed its statements on 14th March 1962, in which it was contended that the land had been purchased by it from Chunnilal Brahmin on Sawan Sudi 5, Samvat year 1990 (somewhere in the year 1933) for using it as a passage for going to their 'sthanak'. It was also mentioned in the said statement that the deceased Chunnilal's son Bal Krishna confirmed the sale. Party No. 1, produced affidavits of Hiralal, Kan Mal, Inder Chand Madan Lal, Ratanlal, Madan Chand and Bal Krishna. The substance of those affidavits is that the plot was bought by the Oswal community from Chunnilal deceased 28 years back and that patty No. 2 was forcibly blocking the way by putting up shutters etc. on the land. It was also stated in the affidavits that the plot in dispute was not included in the sale-deed of party No. 2.
(2.) PARTY No. 2, filed a statement wherein it was given that the plot was purchased by Mst. Rameshwari Devi from Balkrishna for Rs. 2,5000/and in that plot the disputed land was included. In support of this assertion two documents were submitted. Ex. A. 2, dated 3rd December 1959, is the agreement for sale and Ex. A-1, dated 9th December 1959, is the registered sale-deed. Both these documents were executed by Bal Krishna. Party No. 2 also put up affidavits of Mst. Rameshwari Devi and Manak Chand Sunar; wherein it was given that the disputed plot of land was bought by Mst. Rameshwari Devi from Bal Krishna, son of Chunnilal for Rs. 2,500/- in 1959, and that the opposite party had been in possession of the land ever since. The opposite party also put up a latrine over the disputed land. It was further stated in the affidavits that party No. 1 was not in possession of the disputed plot, nor was it in possession of any title-deed in respect thereto. As both the parties advanced their rival claims learned Sub-Divisional Magistrate, Ajmer, referred the matter to the City Munsiff, Ajmer, on 3rd November 1962, after formulating the following question: The case be forwarded to the District Munsiff, Ajmer, to decide the question whether any or which of the parties was in possession of the subject of dispute at the date of the preliminary order. On receipt of the above reference, learned Munsiff examined the documentary evidence. He also recorded the statements of Inder Chand P. W. 1, Madan Chand P. W. 2, Ratanlal P. W. 3, and Kan Mal P. W. 4 on behalf of party No. 1. Party No. 2 examined Manakchand D. W. 1, Mst. Rameshwari Devi D. W. 2, and Ganga Dhar Joshi D. W. 8. Thereafter the following finding was given by the Civil Court on 2nd August 1965: From the evidence produced by party No. 1 it has been established that party No. 1, that is the Oswal community was in possession of the disputed property within 2 months next before the date of the preliminary order passed under Section 145, Criminal P. C. but was forcibly and wrongfully dispossessed by party No. 2 Manakchand and Rameshwari Devi thereafter.
(3.) ON receipt of the above finding, learned Sub-Divisional Magistrate, Ajmer, passed order in the following terms on 18th August 1965: You (S. H. O. Pushkar) are, therefore, here, by ordered that the possession of disputed land be delivered to Sarvashri Inderchand and Madan Lal for Oswal community Pushkar by removing blockings etc. thereon. Against the above order, a revision petition was filed in the Court of learned Sessions Judge, Ajmer, but it proved fruitless, hence this revision, petition: learned Counsel representing Manakchand Sunar and Mst. Rameshwari Devi raised the following points: (1) That the preliminary order drawn up by Sub-Divisional Magistrate, Ajmer, under Section 145, Criminal P. C. , was illegal. The dispute pertained to the right of passage and, therefore, the order ought to have been passed under Section 147, and not under Section 145, Criminal P. C. (2) That the Civil Court went beyond the point referred to it by the Sub-Divisional Magistrate on 3rd November 1962: (3) That the Sub-Divisional Magistrate (Civil Court?) wrongly held that party No. 1 was in possession of the land within two months next of the date of the preliminary order and that it was forcibly dispossessed by party No. 2.;

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