- (1.) THE litigation in respect of plot No. 1001 measuring 2 biswas. 7 biswansis of village Deola, police Station Kotwali Dehat, district Saharanpur (hereinafter referred to as the disputed land), both, in revenue and criminal Courts between Mustafa, the applicant (Revisionist) and Gulaba and Chaman Lal, opposite parties No. 1 and 2, the former claiming it on the basis of a sale-deed executed by the latter in 1967 A. D. has had a chequered history, covering over 11 years and it is almost certain that even this order will not bring a final curtain upon it. As is usual with this type of litigation where the alleged vendees (opposite parties No. 1 and 2) deny the execution of sale-deed, it is being fought to a bitter end. For a proper appreciation of the points involved for determination, it is necessary to detail such facts in a chronological order, which emerge from record and admit of no controversy.
(2.) VILLAGE Deola of District Saharanpur came under consolidation scheme before July 1979. In village records, name of opposite parties No. 1 and 2 was recorded over the disputed land. An objection was filed by Mustafa, revisionist, before the consolidation authorities, asserting bhumidhari rights in the disputed land on the basis of a sale-deed executed by opposite parties No. 1 and 2 in April 1967. It was prayed that his name be mutated in village papers after expunction of the name of opposite parties No. 1 and 2. Indisputably, there are two pucca rooms and a Hall on this land and a flour mill is installed in the Hall. Mustafa claimed to gave raised these constructions after purchasing the disputed land and asserted that he was in possession thereof. The opposite parties No. 1 and 2 denied to have transferred their bhumidhari rights in the disputed land to Mustafa and asserted that the said constructions belonged to them and they were in possession thereof. The then, Assistant Consolidation Officer visited the spot and submitted report on the 24th July 1979 to the effect that Mustafa was in possession of the disputed land and constructions thereon. The Consolidation Officer, by his order dated the 1st of July, 1980, accepted the claim of Mustafa and directed for mutation of his name, on the basis of the sale- deed, over the disputed land, observing that he was in possession thereof. The order was assailed by opposite parties No. 1 and 2 by means of an appeal, but they were unsuccessful, The Settlement Officer Consolidation, by his order dated the 22nd of August, 1980, upheld the findings of the Consolidation Officer. The unsuccessful party, namely, opposite parties No. 1 and 2, then filed a revision before the Deputy Director of Consolidation, who also, by his order dated the 15th of October, 1980, affirmed the findings recorded by the Consolidation Officer and Settlement Officer Consolidation. The opposite parties No. 1 and 2 have invoked the writ jurisdiction of this Court challenging the final order passed by the Deputy Director of Consolidation, Saharanpur and in this writ petition numbered as 822 of 1981 (Annexure CA III filed with the objection by opposite parties No. 1 and 2 in this proceedings), an interim order was passed on 26. 3. 1982 suspending the operation of the order dated 1. 7. 1980 passed by the consolidation officer, provided it had not been given effect to in village records. To sum up the consolidation courts have consistently held that: (a) The sale-deed relied on by Mustafa, revisionist, in respect of the disputed land is genuine; (b) Mustafa is bhumidhari of the disputed land and is in possession thereof; and (c) Chaman Lal and Gulaba (opposite parties No. 1 and 2) are not in possession and have no right in the disputed land. The next phase of the litigation, this time in criminal court, began about two and a half months after the filing of the writ petition referred to above, a report was submitted by the police to the Sub- Divisional Magistrate, in whose jurisdiction the disputed land lies, that there was a dispute between the revisionist and opposite parties No. 1 and 2 in regard to possession over the disputed land and that the same was likely to cause the breach of the peace. On the basis of this report, the Sub-Divisional Magistrate passed the preliminary order on 9. 6. 1982, initiating proceedings under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the code) in respect of the disputed land and required the parties to file written statement. This is important to note that the prelimi nary order does not speak about the constructions, which stand in the disputed land and also about the Chakki, which is, admittedly, installed in the Hall and is being run almost regularly. An order for attachment of the disputed land without making any reference to the constructions thereon was also passed by the Magistrate, but the same has not yet been given effect to. Its operation was suspended and the proceedings were stayed in view of an order passed in the Criminal Revision filed by Mustafa (revisionist) before the Sessions Judge, Saharanpur. Shortly after the disposal of that revision, Mustafa gave an application on 26. 12. 1983 purporting to be one under Section 145 (5) of the Code of Criminal Procedure. It was asserted through this application that no apprehension of breach of peace exists. He claimed that he was in peaceful possession of the disputed land and the constructions thereon. An objection was filed by the contesting opposite parties con troverting this allegation. The parties appear adduced oral and documentary evidence in support of their respective contentions. In the proceeding an application was moved by Mustafa on 27. 10. 87 for spot inspection. The Magistrate seized of the matter inspected the disputed site on the 12th of February, 1988 and prepared an inspection note, which was brought on record. Thereafter, by his order dated 2. 4. 88, he on the basis of the findings: a. that there was no apprehension of the breach of peace; and b. that Mustafa was in peaceful possession of the disputed land and the construction thereon. Dropped the proceedings and in the same continuation directed the contesting opposite parties not to interfere with the possession of Mustafa on the disputed land. Aggrieved by this order, the opposite parties filed criminal revision in the court of Sessions Judge, Saharanpur, which was numbered as 167 of 1988. The revision was allowed on the l1th May, 1988 by the learned VI Additional Sessions Judge, Saharanpur. The order of the Executive Magistrate was set aside and the case was remanded to him for disposal afresh in the light of the observations made in the revisional order. The learned Additional Sessions Judge has given these reasons for arriving at the said conclusion: a. The Sub-Divisional Magistrate seized of a proceeding under Section 145 of the Code of Criminal Procedure is not entitled to make local inspection himself. The revisional court has referred to the provisions of Section 148 of the Code in this connec tion; b. The inspection note prepared on the spot by the Sub-Divisional Magistrate could not be considered at all for the reason that the inspection was made on the back of Gulaba and Chaman Lal, contesting opposite parties No. 1 and 2, who were not informed about it. c. When the proceedings were dropped by the Magistrate, exercising powers under Sectionl45 (5) of the Code, no further finding on any point including that of possession was required to be given, in view of the fact that attachment of the disputed land had not been effected. d. The evidence adduced by the parties on the point as to whether or not the breach of peace exists was not properly discussed.
(3.) THIS criminal revision has been filed by Mustafa challenging the order dated 11. 5. 88 passed by the learned VI Addl. Sessions Judge, Saharanpur. I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. The reasons numbered as (a) and (b), shown above, given by the learned Additional Sessions Judge were half heartedly assailed before me on behalf of the applicant. It was urged that the Magistrate could make local inspection as provided under Section 310 of the Code of Criminal Procedure. In my opinion Section 310 confers powers on a Judge or a Magistrate for making local inspection at any stage of any enquiry, trial or other proceeding, after due notice to the parties. The word 'magistrate' refers to 'judicial Magistrate' as indicated by Section 3 of the Code. An Executive Magistrate is excluded from its purview. It has rightly been pointed out by the learned Additional Sessions Judge that if a Sub- Divisional Magistrate wants to make any local enquiry he may depute any Magistrate subordinate to him vide Sec. 148 of the Code. In the instant case, the Sub-Divisional Magistrate not only made a local inspection but proceeded to make local enquiry also as is evident from the order passed by him. Apart, in view of the fact that he did not give any notice to the contesting opposite parties about the date of the inspection to be made on the spot, the inspection was obviously ex pane is behind their back, and there is no doubt in the least that it offends the principles of natural justice. Therefore, the inspection note or the material collected on the spot has to be completely ignored. The observation of the learned Additional Sessions Judge in this respect is just and legal.;