- (1.)PARTY No. 1 in this case consists of Mst. Jiwani, widow of Gularam and Rawat Ram Jat. PARTY No. 2 is composed of Danaram Jat. The dispute between the two parties relates to land (Khasra Nos. 15/8, 18/8, and 25/ (8), measuring 137 Bighas and 16 Biswas, situated in village Bhanipura. On October 17, 1966, Station House Officer, Loonkaransar, District Bikaner, submitted a report to Sub-Divisional Magistrate, Bikaner, to the effect that there existed serious controversy between the two parties in respect of the above land. The land was in possession of Rawatram, son-in-law of Mst. Jiwani, widow of Gularam. Some litigation regarding this land had proceeded between the two parties. Finally, the matter was decided by the Revenue Appellate Authority, Bikaner, on August 28, 1965. The said Station House Officer further reported that there existed apprehension of breach of the peace and, therefore, proceedings under section 145, Cr. P. C. , should be undertaken. On October 18, 1966, a preliminary order was drawn by learned Sub-Divisional Magistrate, Bikaner, wherein it was mentioned that there was a controversy regarding land, described as Khasra Nos. 15/8, 18/8 and 25/8, measuring 137 Bighas and 16 Biswas. The order further recited that the parties concerned should put in written statements, documents and affidavits in respect of rival claims respects the fact of actual possession of the subject of dispute. That very day, the property was ordered to be put under attachment under S. 145 (4), Cr. P. C. The standing crop was sold for Rs. 1800/-, and that amount was deposited in the court of learned Sub-Divisional Magistrate, Bikaner. In pursuance of the above preliminary order, both the parties filed written statements, relevant documents, and affidavits in the court Finally learned Sub-Divisional Magistrate, Bikaner, by his order dated May 20, 1967, concluded that it was Danaram who was in actual possession of the property within a period of two months next before the date of the preliminary order. He, therefore, directed that attachment should be released and the land should be put in possession of the non-petitioner Dana Ram. He also passed an order that Rs. 1800/-, received on account of the sale of the standing crop, should be given to Danaram. Against the above order, a revision-application was filed in the court of Sessions Judge, Bikaner, who by his order, dated October 5, 1967, dismissed the same.
(2.)AGAINST the above two orders, party No. 1 has filed the present revision-petition. Party No. 1 is represented by Shri Hastimal Parekh and Shri Pannalal Agarwala put up appearance on behalf of party No. 2. Assistant Government Advocate, Shri A. K. Mathur, represented the State of Rajasthan.
Learned counsel for the petitioners argued that in this case litigation had proceeded between Gularam, the husband of Mst. Jiwani, and father-in-law of Rawatram, on the one side, and Danaram on the other. Ultimately the matter was compromised before the Revenue Appellate Authority, and in terms of that compromise, order was passed by the said Tribunal on August 28, 1965. Thus. the order given by the Sub-Divisional Officer, on June 15, 1964 (Ex. D. 1) merged into the compromise decree Ex. P. 1. It was wrong on the part of Sub-Divisional Magistrate, Bikaner, to have passed his decision principally on the order of the Sub-Divisional Officer, Bikaner, dated June 15,1964. According to the compromise decree, the land in dispute (Khasra Nos. 15/8, 18/6, and 25/8) was given to Gularam, husband of Jiwani, and father-in-law of Rawatram. Khasra No. 98/1 was given to Danaram. Learned counsel for the petitioner then added that the preliminary order, dated October 18, 1966, was drawn as respects the subject of dispute and in that order also the aforesaid Khasras were mentioned. The parties led their evidence regarding the above Khasras. Learned counsel also pointed out that the Sub Divisional Magistrate, Bikaner, relied upon his inspection-note and the site plan prepared on the subject of dispute, which he ought not to have done. The substratum of the argument of learned counsel for party No. 2 is that the decree, awarded by the Revenue Appellate Authority was not put into execution and, therefore, it could not be said that Rawatram or Mst. Jiwani were given actual possession of the land. His further contention is that the question of title cannot be gone into while conducting proceedings under S. 145, Cr. P. C. and as party No. 2 Was in actual possession of the property when the preliminary order was drawn by Sub-Divisional Magistrate on October 18, 1966, that party is entitled to retain possession in accordance with the provisions of S. 145, Cr. P. C.

In this case, it is evident from the record that litigation went on between the two rival/claimants. Sub-Divisional Officer, Bikaner, passed an order on June 15, 1964, in favour of Danaram, rejecting the plaint of Gularam for possession of the land in dispute. Against that order, an appeal was taken in the court of Revenue Appellate Authority, Bikaner. In that court a compromise had been arrived at between the two parties Gularam (now dead) and Danaram. According to that compromise, land (Khasra No. 98/1), measuring 75 Bighas, was to be kept by Danaram, and Khasra Nos. 15/8, measuring 37 Bighas and 11 Biswas, 18/8, measuring 39 Bighas and 1 Biswa, and 28/8, measuring 91 Bighas and 4 Biswas, were to be kept in possession of Gularam. It was also mentioned in the decree of the Revenue Appellate Authority that none of the parties either Gularam or Danaram would enter the land of the opposite party, and that whatever amount was lying in deposit with the receiver should be given to the two litigants half and half. From this, it is plain that the judgment of Sub-Divisional Officer, Bikaner, dated June 15, 1964, stood quashed, as having been substituted by the compromise decree, awarded by the Revenue Appellate Authority. It was, therefore, improper on the part of the Sub Divisional Magistrate to have relied upon the previous judgment of the Sub-Divisional Officer, and base his conclusion thereupon.

On receipt of a report from the Station House Officer, Loonkaransar, preliminary order was made by Sub-Divisional Magistrate, Bikaner, on October 18, 1966, regarding the lands described as Khasra Nos. 15/8, 18/8, and 25/8, measuring 137 Bighas and 16 Biswas, situated in village Bhanipura. Parties led their evidence. It is, therefore, plain that learned Sub-Divisional Magistrate, Bikaner, conducted proceedings under S. 145, Cr. P. C. , in respect of the subject of dispute, for which a compromise decree had already been obtained from a competent court by the two parties.

Now the question remains whether proceedings under S. 145, Cr. P. C. could have been taken when a competent court had already passed a compromise decree as respects the actual possession of the subject of dispute. In this connection, my attention had been invited to a number of authorities in which it has been held that it is the duty of the Magistrate holding proceedings under S. 145, Cr. P. C. to maintain the rights of the parties, when such rights have been declared by a competent court within a time not remote from taking proceedings under the section. In Bhinka vs. Charan Singh (l), Hon'ble Subba Rao J. , speaking for the Supreme Court, said that the life of an order under S. 145, Cr. P. C. , is coterminus with the passing of a decree of a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. In the case of Makhanlal vs. Mangal (2), it was held by Yorke J. , that where there is a decree of a civil court in respect of possession of the disputed land, it is the duty of the criminal court, proceeding under S. 145, Cr. P. C. , to find which party held such civil court's decree and then to maintain possession of that party. To take proceedings again under S. 145, Cr. P. C. , would have the effect of modifying or cancelling the order of the civil court, determining the rights of the parties, and that would result in assuming jurisdiction which the law does not contemplate. In the case of Imtiaz Ali Khan vs. Shekh Badruddin (3), Bennet J observed that where the civil court, which was seized already of the matter, has disposed it in favour of one of the parties to the proceeding under sec. 145, Cr. P. C. , the proceedings under sec. 145 Cr. P. C. , should be set aside. It would be open to the Magistrate, if he thinks necessary, to take proceedings against either or both parties under sec. 107 Cr. P. C. if there is likelihood of breach of the peace. In Ganesh Dutt Tewari vs. Jittan Tamboli (4), Walsh J. , pointed out that where the civil court decided the question of title of the property which forms the subject of the proceedings under Chapter XII of the Criminal Procedure Code and had directed that possession thereof be given to a particular person, a criminal court has no jurisdiction to initiate fresh proceedings under sec. 145, Cr. P. C. , in respect of the same property. Such proceedings are without jurisdiction and are liable to be quashed in a revision by the High Court. There is a recent decision reported in Banamali Mohapatra vs. Dajra Mahak (5), where Narasimhan C. J. , observed that in proceedings under sec. 145, Cr. P. C. , the decree passed by a civil court regarding possession of and injury against property in dispute, must be respected and the defendant in a suit should not be allowed to allege his possession in spite of the decree passed against him by suppressing the fact of the previous civil litigation respecting the disputed property. It was further pointed out that in a case of this kind successful party in the civil litigation must be allowed to maintain its possession and any attempt to interfere with its possession can be prevented only by taking recourse to proceedings under sec. 107, or sec. 144, Cr. P. C. Proceedings under sec. 143, Cr. P. C. , between the parties who had already fought out litigation in the civil court would encourage defiance of the civil court and paralyse the administration of justice.

In the instant case, as has been pointed out above, both the parties had arrived at a compromise in the court of the Revenue Appellate Authority and it was decided in terms of the compromise that Khasra No. 98/1 should go to Dana Ram and Khasra Nos. 15/8, 18/8 and 25/8 should remain in possession of party No. 1. According to items 23-A and 23-C of the third schedule to the Rajasthan Tenancy Act, 1955, suits for possession and perpetual injunction respectively shall be decided by revenue courts specified in column No. 7 of the schedule. Sec. 207, Rajasthan Tenancy Act, 1955, provides that all suits and applications of the nature specified in the third schedule shall be heard and determined by revenue court, and that no court, other than a revenue court, shall take cognizance of any such suit or application. If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than or is not identical with that which the revenue court could have granted. From this provision it is plain that the competent court to entertain suits for injunctions or suits for possession of agricultural land is the revenue court and not a civil court and when there is a final decision in terms of the compromise arrived at between the parties, that decision would be considered to be one passed by a competent court, having jurisdiction over the subject of dispute. In the face of such decision, proceeding; under sec. 145, Cr. P. C. cannot be entertained by a criminal court. The duty of the criminal court is to respect the previous decision arrived at between the parties and not to launch proceedings afresh under sec. 145, Cr. P. C. If there is possibility of breach of the peace, proceedings can be taken under sec. 107 or sec. 144 Cr. P. C. In that view of the matter, the order of learned Sub-Divisional Magistrate, Bikaner, dated May 20, 1967, shall be deemed to have been passed without jurisdiction and it cannot, therefore, be allowed to stand.

It may also be stated here that learned Sub-Divisional Magistrate inspected the site and observed that land in dispute, described as Khasra No. 120, stood in the name of Danaram. He also got a site plan prepared in respect of that land. He relied upon his site-inspection note and the map which he got prepared. A Magistrate is certainly not allowed to have his own view or observation to take the place of evidence because such a view or observation cannot be tested by cross-examination and the opposite party would certainly not be in a position to furnish any explanation in regard to the same. In the absence of such a test having been applied and an explanation not obtained from the opposite party in regard to the same, it is not open to the Magistrate to incorporate his observation in his judgment and base his conclusion on the same : vide Pritam Singh vs. The State of the Punjab (6 ). Unless the shetch map prepared by the Magistrate while making local inspection is proved, like any other document, it is impossible to use it as evidence or to say what value should be attached to it. In this case the Magistrate held the local inspection and he also got prepared a map which has been used as an evidence by him. That shows that he placed himself in the position of a witness, which he could not have done and, therefore, he wrongly made use of these documents.

Learned counsel for party No. 2 urged, in the course of his arguments, that Rs. 1800/-, received on account of the sale of the crop, should be ordered to be given to Danaram and not to party No. 1 Mst. Jiwani and Rawatram. The attachment memo, dated August 20, 1966 shows that the field in dispute was attached when it was in possession of party No. 1. Judgment of the Revenue Appellate Authority further indicates that none of the parties could enter the land assigned to either of them. Party No. 1 was put in possession of Khasra Nos. 15/8, 18/8 and 25/8 and party No. 2 was given possession of Khasra No. 98/1. It cannot, therefore, be said that party No. 1 was not assigned possession of the subject of dispute. Danaram does not speak a word about the land in dispute in his affidavit. On the other hand, he admits in his affidavit that he is in possession of the land according to the decision of the Revenue Appellate Authority. He has further mentioned in the affidavit that he is in possession of Khasra No. 120, situated in village Bhanipura. It is nowhere shown in the proceedings, under sec. 145, Cr. P. C. whether there was a dispute between the parties relating to the aforesaid Khasra. Therefore, in that context contention of learned counsel for the party No. 2 that Rs. 1800/-, recovered on account of the sale of the crop should be given to Danaram, does not appear to be sound. From the evidence it is plain that it was party No. 1, which was in possession of the property in dispute on the date of the passing of the preliminary order and, therefore, the amount, recovered on account of the sale of the crop, should go to party No. 1 and not to party No. 2. Learned counsel for party No. 2 further argued that the order regarding handing over money to party No. 2 is only an administrative order and as such a revisional court has no jurisdiction to interfere with such a direction. A perusal of the order of learned Sub-Divisional Magistrate, Bikaner, dated May 20, 1967, shows that the direction of handing over money formed part of the order passed under sec. 145, Cr. P. C. Therefore, that order cannot be said to be a mere executive order. It was in fact a part of the judicial order, made under sec. 145 Cr. P. C. and if such an order is illegal, revisional court has jurisdiction to interfere with it.

In the result, I accept this revision-petition, and set aside the orders of learned Sub-Divisional Magistrate, Bikaner, dated May 20, 1967, and that of Sessions Judge, Bikaner, dated October 5, 1967. It will be open to the Magistrate, if he thinks necessary, to take proceedings against either or both parties under sec. 107 or sec. 144, Cr. P. C. Rs. 1800/-, received on account of the sale of the standing crop, should be recovered from party No. 2 and the same should be made over to party No. 1, viz. , Mst. Jiwani and Rawatram. .

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