MAGH DASS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS application under Section 482, Cr.PC is directed against the order dated 6 -11 -1986 of the learned Sessions Judge, Churu passed in Criminal Revision No. 167 of 1986, whereby, he maintained the order of the learned Munsif and Judicial Magistrate, Sardar Shahar dated 31 -10 -1986.

(2.) THE case has long chequered history and has arisen in the circumstances that one Arjundas Pujari filed a suit as far back as the year 1962 That suit was decreed by the Assistant Collector, Churu on 24 -9 -1968 An appeal was preferred by the present petitioner Maghdass and the same was dismissed on 31 -8 -1977 and second appeal was also dismissed by the Board of Revenue on 21 -2 -1985. In execution of the decree, filed by the decree -holder warrant of possession was issued by the Sub -Divisional Officer on 8 -5 -1985 and in execution of warrant of possession, the judgment -debtor Maghdass Was dispossessed on 23 -5 -1985 from the land comprised of khasra Nos. 162 168 and 169 as stated in the warrant of possession. Khasra No. 168 consisted of 54 Bhighas 4 Biswas from which the judgment -debtor was dispossessed. It was recorded in the report on the warrant of possession that at the time of delivery of possession, no 'Dhani' or 'Zhupa' for residential purposes was found at the spot and the judgment debtor was not present. Maghdass having been dispossessed in execution of the decree through a warrant of possession again, filed a revenue suit on 3 -6 -1985. Initially, on 5 -6 -1985, status quo was ordered by the Sub -Divisional Officer. Ultimately, the suit was dismissed and stay order was vacated on 4 -10 -1985. According to the decree -holder Shivratan. Mahgdass committed criminal trespass over the field on 12 -6 -1985 After coming into possession of the land in question, according to the decree -holder Shivratan, two stone slabs were put as identifying marks over the land and seven stone slabs were placed for construction purposes and two carts of soil were also unloaded over therefor the purpose of making construction of 'dhani'. He found that the stone slabs have been stolen. A report of the occurrence was lodged by him on 17 -6 -1985 regarding the occurrence alleged to have taken place in the evening of 12 -6 -1985. On his report, case under Sections 447, 427 and 379, IPC was registered. During investigation the site -plan was prepared on 18 -6 -1985 and it was mentioned in the site -plan and site -notes that there exists 'zhupa' marked 'G' in khasra No. 168 The police during investigation, took into custody the land in question comprised on khasras Nos. 162, 168 and 169 vide memo dated 1 -9 -1985. The memo dated 1 -8 -1985 no where records that there exists any 'dhani'. It was mentioned in the memo that Shivratan, Girdhar Gopal and Ranjeet Kumar r/o Sardar Shahar were found present in the aforesaid three khasras and they were in possession of these khasras and these khasras were under their cultivation Applications under Section 451, Cr.PC were presented both by the complainant as well as by the accused petitioner Maghdass. Learned Magistrate passed an order dated 19 -10 -85 whereby the land in question was ordered to be delivered to the complainant Shivratan on 'Supurdginama'. Against that order, an application under Section 482 Cr.PC was filed by Maghdass in this Court and this Court by its order dated August 25, 1986 dismissed that petition. It was observed by this Court that there was full justification in passing of the order in the back -ground of the case and particularly, the documents produced A along with the charge -sheet showing delivery of possession to the complainant in execution of the decree. It was also observed that Under Section 451, Cr.PC the interim order was passed for the proper custody of the land in question till the conslusion of the trial and that it is for the Court to manage the property during this period, that is why, the possession of the land has been delivered on execution of 'Supurdginama', and 'Jamanatnama'. This Court also observed that when the property is in the custody of the court and only an arrangement has been made for its proper management, it shall be treated on behalf of the court and the person to whom the property is given, is under an obligation to render the account, if he cultivates the land on behalf of the court and the petitioner was directed to approach the court -below in this connection, if so advised.

(3.) THE learned Counsel for the complainant submitted that three dhanis have been handed -over to him on 'supardginama, under the orders of the court and it shows that the accused has put up these dhanis showing his possession. Even otherwise, the petitioner cannot be allowed to remain in possession of the dhani, the situation which no court can countenance. When the land around the Dhani, has been taken possession of by the complainant under the orders of the court, the accused cannot be allowed to remain in occupation of the dhani unless the court permits the accused to use the land around the dhani for purpose of ingress and egress, which has not been done by the court in the present case. The most material aspect of the case which has compelled this court to take a view that the entire land is in the custody of the court and should be managed by it is that after that 23 years of litigation between the parties, in execution of the decree possession was delivered to the decree -holder and soon thereafter, a criminal trespass was committed. It is in this situation, the land was taken into possession. During investigation and the order under Section 451, Cr.PC was passed by the learned Magistrate and that order was upheld by this Court and the same has become final. In the light, of the above consideration, in my opinion, the order of the learned Magistrate calls for no interference.