Decided on December 21,1967

BHAIR GIR Appellant

Referred Judgements :-


Cited Judgements :-



L. S. MEHTA, J. - (1.)HANUMAN Prasad Purohit, resident of Ajeetpura, Tehsil Bhadra, District Ganganagar, made an application in the court of Sub Divisional Magistrate, Nohar, on May 21, 1966, against Bhair Gir, Nizammudeen, and Safi under sec. 145, Cr. P. C. The allegations made in the application were that Khasra No, 85, measuring 21 Bighas and 16 Biswas; Khasra No. 487, measuring 39 Bighas and 13 Biswas; and Khasra No. 390, measuring 6 Bighas and 1 Biswa, situated in the out skirt of village Rohi Ajeetpura were entered as Khatedari lands of the Shiv temple of the village and its Dharamshaila. This land was under the cultivation of the temple Pujari and its income was utilised over the shrine and the Dharamshaila. The temple Pujari, Ganpat Gir, died in Smt. year 2012. Thereafter his 'chela', Santosh Gir, also died in Smt. year 2015. After Samvat year 2015 the land was administered and controlled by the Mandir Committee, set up by the public for the purpose of managing the affairs of the temple and the Dharamshaila. The land was given to sundry people for the purpose of cultivation and its income was utilised over the expenses of the temple and the Dharamshaila. A year before the filing of the application, Khasra No 85 was given to Deva Jat, resident of Jogivala, and Khasra No. 487 was allotted to Uda Jat of Jatipura, and Khasra No. 390 was let out to Goru Kumhar of Ajeetpura. These people cultivated the land and after gathering their crops returned the land to the Mandir Committee. A few days prior to the filing of the application, the non-petitioners Bhair Gir, Nizammudeen, and Shafi attempted to cultivate the land by force and without any legal title vested in them and they threatened that they would insist upon cultivating the same despite the wishes of the Committee members to the contrary. It was further pointed out that with this background there was every possibility of breach of the peace. The petitioner, in the capacity of the Vice-President of the Prabandhak Committee, therefore, prayed that proceedings under sec. 145, Cr. P. C. be taken. It was further prayed that till the disposal of the case the land should be attached and be kept under a receiver appointed by the court with a view to avert breach of the peace. In support of this application HANUMAN Prasad filed an affidavit.
(2.)ON receipt of the above application, learned Sub-Divisional Magistrate, Nohar, ordered that the disputed land should immediately be attached and notices be given to both the parties to appear in the court on the appointed date i. e. , on June 3, 1966, and file their written statements and affidavits etc. , with regard to their respective claims over the land in dispute. In pursuance of that order, the land was attached by the Tehsildar, Bhadra, on June 16, 1966. ON behalf of the petitioner Sheodat Ram, President of the Mandir Committee and the Sarpanch of the Gram Panchayat, Ajeetpura, Mangesh Singh, Ex-Sarpanch, Gram Panchayat Ajeetpura, Nanak Ram, a member of the Mandir Committee, Badri Singh, Ex-Up-Sarpanch, Hanuman Prasad, Chananmal, Munshi Ram, Jai Narayan, Ex-Panch, and Shiv Kumar Panch, Gram Panchayat, Ajeetpura, filed their affidavits on June 18, 1966. A copy of the receipt of the land revenue issued by the Patwari on February 24, 1965, in the name of the Manager of the Mandir Committee, a copy of the settlement Parcha, copies of the resolutions of the Gram Panchayat, Ajeetpura, copies of the Ikrarnamas executed by Gafura and Zeerdin, and copies of the records of the yearly auction of the land under dispute by the Mandir Committee from 1962 to 1965 were also filed. ON behalf of Bhair Gir and others of party No. 2 written statements were filed in which they denied the existence of any Mandir Committee. They stated that Bhair Gir was the adopted son of Ganpat Gir. During his life time Ganpat Gir cultivated the land and after his death Mst. Dallo, widow of Ganpat Gir, got the land cultivated. They further alleged that the disputed land was originally a Maufi grant and after its resumption, Maufidar was given Khatedari rights and Mst. Dallo was ordered to be entered as Khatedar by the Additional Collector (Jagir ) Ganganagar ; vide his order No. 326 dated December 21, 1965. Mst. Dallo died on December 23, 1965, and after her death her adopted son Bhair Gir started cultivating the land. It was further alleged that it was Bhair Gir or Mst. Ballo who let out this land on Theka to others and that it was Bhair Gir who continued to be in its peaceful possession. It was also pointed out that the non-applicants Nizammudeen and Shafi were cultivating some portions of the land on behalf of Bhair Gir. The non-applicants filed affidavits of Shafi, Deva Ram and Udaram. They further filed copies of the order of Additional Collector (Jagir), dated December 21, 1965, and the adoption deed, executed by Mst. Dallo, on November i9, 1965, in favour of Bhair Gir. Besides these, copies of the Jama Bandi of Samvat year 2011 to Samvat year 2017 and copies of Khasra Girdawaris from Smt. year 2017 to 2022 were submitted. Learned Sub-Divisional Magistrate inspected the site on July 23, 1966. Eventually on July 28, 1966, he ordered that the non-applicants should be dispossessed from the land and that its possession be given to the Mandir Committee.
Aggrieved against the above order, a revision-application was taken in the court of learned Sessions Judge, Gangangar, from where it was transferred to the court of Additional Sessions Judge, Ganganagar. The revision-application was dismissed on October 31, 1966. Hence the present revision-petition filed by Bhair Gir, Nizammudeen, and Shafi of party No. 2.

Learned counsel for the petitioners raised the following points: (1) That the court of Sub-Divisional Magistrate, Nohar, went wrong in relying upon the affidavits which were defective and were not in accordance with law. (2) That the Sub-Divisional Magistrate's court erroneously based its finding upon certain documents filed by party No. 1 which were not admissible in evidence. (3) That the Mandir Committee was not a statutory body and had, therefore, no locus standi, and that if the Mandir Committee was a public body, Bhair Gir, Nizammudeen, and Shafi, being residents of the same village, had every right to have joint possession over the property and they could not have been dispossessed by the Committee.

Learned counsel for party No. 1, supported the judgment of the learned Sub-Divisional Magistrate and of the Additional Sessions Judge, Ganganagar.

As regards the first point, it may be stated at the outset that proceedings under sec. 145, Cr. P. C. are in reality of civil nature and the party considering itself aggrieved by the order can go to a civil court and ask for redress vide Sukhlal Shaikh vs. Tarachand Ta (1 ).

There is no dispute that there is a Shiv Temple in the village Ajeetpura and the land in dispute is attached thereto. There is also no dispute that the land was once in possession of the deceased Ganpat Gir Pujari. Ganpat Gir died in Smt. year 2012. It also admits of no doubt that Ganpat Gir was succeeded by his Chela Santosh Gir, who died in Smt. year 2015. Ganpat Gir had a widow Mst. Dallo. Mst. Dallo, it appears, adopted Bhair Gir by a registered adoption deed, dated November 19, 1965, although the original adoption deed has not been produced. There is also an order of the Additional Collector (Jagir), Ganganagar, dated December 21, 1965, by which Khatedari rights over the land were given to Mst. Dallo, who died on 23-12-1965. Thereafter Bhair Gir came in the picture.

Now the question is as to which party cultivated the land within two months next of the passing of the preliminary order May 21, 1965. , Party No. 1 claims that the land remained in possession of the Mandir Committee, whereas party No. 2 comprising Bhair Gir, Nizammuddin and Shafi, claims that the land remained in its peaceful possession. In support of its claim party No. 1 has filed certain affidavits, but none of them has been properly sworn to. There is another infirmity in the affidavits. In the last paragraphs of the affidavits it is not mentioned which paragraphs were true in accordance with the deponent's own knowledge and which were true in accordance with his belief. In the absence of proper swearing in and proper form, the affidavits ought not to have been made the basis of the finding of the courts below. In support of this proposition reliance is placed on Seth Nauratanmal vs. Harisingh (2 ). In that case Hon'ble Wanchoo, G. J. , made the following observations: "it is the duty of the person swearing an affidavit to state separately what parts of it he is swearing on personal knowledge and what parts on behalf of information received. "

In Messrs. Shamsunder Rajkumar vs. Messrs Bharat Oil Mills, Nag-pur (3), it was held that where the affidavit, major part of which was on the information received from others, was not verified by stating the source of information and the ground of belief with sufficient particularity, it could not have the value of evidence in the case. In a Full Bench case of the Patna High Court, reported in Dipendra Nath Sarkar vs. State of Bihar and others (4) Hon'ble Ramaswami C. J. speaking for the court, observed that if the deponent of the affidavit does not clearly state how much of the statement is a statement of the knowledge of the deponent and how much of it is a statement of his belief, that affidavit has to be ignored. In Padmabati Dasi vs. Rasik Lal Dhar (5), which is the basic authority on the point in issue, it has been laid down by Sir Lawrence Jenkins, that the provisions of Order XIX, R. 3 C. P. C. , must be strictly observed, and that every affidavit should clearly express how much is a statement of deponent is knowledge and how much a statement of his belief and the grounds of the belief must be stated with sufficient particularity. The authority has been approved of by their Lordships of the Supreme Court in State of Bombay vs. Pursushottam Naik (6 ). It was held by his Lordship Bose J. that the verification of an affidavit filed by a Government Officer to prove that certain order was validly made by the State Government should invariably be modelled on the lines of Order 19 R. 3, C. P. C. whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. It is true that in Morarka Radhey Shyam vs. Roop Singh (7), it was held by their Lordships that the defect in the matter of verification of the election petition was a matter which came within clause (c) of sub-section (1) of sec. 83 of the Representation of the Peoples Act, 1951, and it would be removed in accordance with the principles of the Civil Procedure Code (1908 ). Learned counsel for party No. 1 also cited Krishna Chander Nayar vs. The Chairman, Central Tractor Organization (8 ). But that case instead of helping party No. 1 helps party No. 2. It was observed therein that the affidavit should be drawn up not in a careless and irresponsible manner. Another case relied upon by party No. 1 is Dwarka Nath vs. Income-tax Officer, Special Circle, D. Ward, Kanpur (9 ). In that case it was held that if the affidavit was defective in any manner, the High Court, instead of dismissing the petition in limine, should have given the petitioner a reasonable opportunity to file a better affidavit. The Supreme Court authorities (supra) pertain to the procedural matter. If there was a mistake in the verification of affidavit, the application pertaining to the Representation of the Peoples Act or a writ should not be thrown away. Sub-sec. (4) of sec. 145, Cr. P. C. , clearly lays down that the claims of the parties could be determined on the affidavits, statements and documents, filed by the parties and as such the affidavits would constitute an evidence and when the affidavits have not been filed in proper form or have not been properly sworn to, there is no other alternative but to ignore such affidavits. The court, while proceeding under sec. 145, Cr. P. C. cannot remand the case to fill in the lacunae. The inquiry under sec. 145, Cr. P. C. is limited to the question as to who is in actual possession of immovable property on the material date irrespective of the question as to the rights of the parties. The primary object of the provisions is the prevention of breach of the peace in respect of dispute arising out of an immovable property. In order to achieve the object, the section enables the Magistrate to settle the matter temporarily and to maintain the status quo until the rights of the parties are decided by a competent court. In that context, the question of removing the lacunae in the affidavit does not arise. The affidavits form the very foundation upon which the temporary order under sec. 145, Cr. P. C. can stand and when that foundation is infirm, no order can be passed thereunder. Learned counsel for party No. 1 has relied upon Jethalal vs. State (10 ). In that case it was pointed out that if the deponent stated that he had perused the papers and the proceedings relating to the matter in question and that he was conversant with the facts of the case and able to depose to the statement made by him in the affidavit, it was not necessary that the deponent should state in his affidavit which portion of it was true to his knowledge and which was true to his belief. On the very face of it, the Gujrat case is distinguishable from the facts of the present case. In the Gujrat case the affidavit was based on the perusal of papers and proceedings, which is not the case here.

Since the affidavits submitted by party No. 1 were neither properly sworn to, nor were they drawn up in proper form, they have got to be ignored, and no finding can be based upon such affidavits.

I now switch on to point No. 2. Party No. 1 filed certain documents mentioned above. The originals of these documents are not on the record. The copies which are available on the record have not been compared with the originals. It is not clear how all these documents have been admitted in evidence by the court of Sub-Divisional Magistrate, Nohar. Party No. 2, on the other hand, filed certified copies of the Jamma Bandi from Samvat year 2011 to 2017 and of the Khasra Girdawaris from Smt. year 2017 to 2020. Girdawari entries of Samvat year 2017 to 2020 show that Gafura, father of Nizammuddin and Shafi, was also cultivating the land. Party No. 2 has filed another very important document. It is a certified copy of the order of the Additional Collector (Jagir), Ganganagar, dated December 21, 1965. In that order it is specifically mentioned that the Khatedari right over the land in dispute after the resumption of the Muafi shall go to Mst. Dallo, widow of Ganpat Gir. That apart, party No. 1 contends that the land in dispute had been given to Uda and Deva. Both Uda and Deva have filed their affidavits duly sworn to before Sub-Divisional Magistrate, Nohar, in which they have stated that they did not cultivate the land of the Mandir Committee. Deva has further said that the Mandir Committee did give him the land of Khasra No. 85, but that very day when Mst. Dallo objected to it, he relinquished it forthwith. Thus, Uda and Deva do not support in the least the claim of party No. 1. Be that as it may, the documentary evidence led by party No. 1 being not admissible in evidence does not support its claim.

I have now to deal with point No. 3. It has not been established by party No. 1 as to under what law the Mandir Committee was constituted. Learned counsel for party No. 1 referred to an authority of the Rajasthan High Court in Abdul Gafoor vs. State (11 ). In that judgment it is given that rights of the Mut-walies and the managers are defined and definable and a declaration of their possession under sec. 145, Cr. P. C. could be made. In the above authority the Mutwal-lies and the managers were appointed under some statutory law and their rights were well defined. But this is not the case here. In the instant case the rights of the Mandir Committee have not been defined anywhere in any statutory law. Therefore, the above authority hardly comes to the assistance of party No. 1. The Mandir Committee, it is alleged, was constituted by the public. The public could not be declared to be in possession of any land, for if that be done, then both the parties to the dispute were included in that term and the possession, therefore, must be held to be a joint one and the jurisdiction of the court under sec. 145, Cr. P. C. , would be ousted; vide Manik Chandra Chakravarti vs. Preo Nath Kuar (12 ). On this ground also, both the courts below could not have ousted party No. 2 from the possession of the land in dispute.

For the forgoing reasons, I am of opinion that the learned Sub-Divisional Magistrate, Nohar, has failed to comply with the provisions, contained in sec. 145, Cr. P. C. He thus acted illegally in the exercise of his jurisdiction. Therefore, this court in the exercise of the powers conferred on it under sec. 435/439, Cr. P. C. has the power to interfere.

(3.)IN the result, I accept the revision petition filed by party No. 2, set aside the order passed by learned Sub-Divisional Magistrate, Nohar, dated July, 28, 1966, as also the judgment of learned Additional Sessions Judge, Ganganagar, dated October 31 1966, and dismiss the application under sec. 145. Cr. P. C. filed by party No. 1 and direct that the land should be restored to party No. 2, Bhair Gir and others. .

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