M.C.JAIN, J. - (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. The present petition primarily is concerned with possession over the 'dhani'. Learned Counsel for the petitioner submitted that the S.H.O. Sardar Shahar in his reports dated 22 -10 -1986 and 30 -10 -1986 has stated that Maghdass is residing in his 'dhani'. In the report dated 30 -10'1986, it was stated that as there was no direction for dispossession in the order dated 3 -10 -1986, so, Maghdass along with his family was allowed to remain in the Dhani. These reports show that Maghdass was in possession of the Dhani and continued to remain in possession of the dhani and was never dispossessed from the Dhani so the Dhani is not in the custody of the court and no order in respect of the Dhani could be passed and was passed under Section 451, Cr. PC and now he cannot be dispossessed from this dhani. It is true that these two reports record a fact that Magh Dass along with his family, was putting up in the dhani and was not put out of possession as there was no order of the court but the question is whether the entire land of khasra No. 168 over the portion of which dhani is said to exist at present, was taken possession by the police on 1 -9 -1985. This question has to be examined in this background that on 23 -5 -1985, there was no dhani or zhupa on the land in question for residential purposes and the trespass is alleged to have been committed by the accused on 12 -6 -1985 and the report was lodged on 17 -6 -1985. The site plan does show the existence of 'Zhupa' at the point 'G' on 18 -6 -1986. This shows that the Zhupa came up after commission of criminal trespass. It appears that there was no 'Zhpua' over the land in question. The memo of taking possession is dated 1 -9 -1985 prepared by the police. It records taking of possession of land and there is no mention of Dhani. If the land is taken into possession, then the land beneath the dhani would form part of the land which has been taken into possession as temporary super structure can be removed, ft is inconceivable that the accused was allowed to remain in occupation of the dhani and the land beneath it and and only the rest of the land was taken into possession by the police. The dhani goes with the land. If the land is custodia legis then Kacha Chhan goes with it.
(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.;