IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 863 of 2006 (Old No. 5882 of 1997) 1. Nain Singh (since deceased) 1/1. Gopal Singh S/o late Sri Nain Singh R/o Village Bhakun Khola, Patti B-Katyur, Tehsil Bageshwar, District Bageshwar. ...…………. Petitioner Versus 1. Khag Ram S/o Sri Ram Lal 2. Daulat Ram S/o Sri Ram Lal 3. Smt. Basanti Devi W/o Sri Khag Ram All R/o Village Naughar, Patti B-Katyur Tehsil Bageshwar, District Almora (Now District Bageshwar). 4. State of U.P. (Now State of Uttarakhand). ...…………. Respondents Mr. C.D. Bahuguna, Advocate for the petitioner. Mr. B.D. Upadhyaya, Advocate for respondents No. 1 to 3. Mrs. Mamta Bisht, A.G.A. for State of Uttarakhand / respondent No. 4. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has challenged the order dated 11.05.1992, passed by Sub Divisional Magistrate, Bageshwar, in Criminal Case No. 10 of 1984, whereby it has directed to restore the possession of plot No. 800, 2 measuring 3 Nali 13 Muthi, situated in Bhakun Khola to respondents No. 1 to 3. The petitioner has also challenged the order dated 20th of August 1997, passed by Sessions Judge, Almora, whereby said court has dismissed Criminal Revision No. 27 of 1992, affirming the order passed by the Sub Divisional Magistrate, Bageshwar. 2) Heard learned counsel for the parties and perused the record. 3) Brief facts of the case are that the petitioner Nain Singh moved an application under Section 145 of Cr.P.C. before the Sub Divisional Magistrate, Bageshwar on 28.09.1984, alleging that he is recorded tenure holder and in possession of plot No. 800, measuring 3 Nali 13 Muthi, in Village Bhakun Khola. He has stated in his application that when he was harvesting the crop of paddy, respondents No. 1 to 3 interrupted and stopped him from harvesting. Apprehending that the petitioner could again be interrupted in harvesting, the application under Section 145 of Cr.P.C., was moved. On said application which was registered as Criminal Case No. 10 of 1984, the Magistrate passed preliminary order under Section 145(1) of Cr.P.C. asking respondents No. 1 to 3 to reply the allegations made in the application. Meanwhile, the land in question was attached under Section 146(1) of 3 Cr.P.C., and possession of the same was given to one Narain Singh. After recording the evidence and hearing the parties, the Magistrate held that respondents Khag Ram, Daulat Ram and Basanti Devi were in possession of the land in question, and entitled to get back the same. Aggrieved by said order dated 11.05.1992, passed by the Sub Divisional Magistrate, Bageshwar, in Criminal Case No. 10 of 1984, the petitioner Nain Singh filed Criminal Revision No. 27 of 1992 before the Sessions Judge, Almora. Said court also, after hearing the parties, dismissed the revision. Hence, this petition under Section 482 of Cr.P.C. was filed before the Allahabad High Court on 12.09.1997, from where it is received by transfer under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 4) Learned counsel for the petitioner drew attention of this Court to the copy of judgment and order dated 05.10.1979, passed by Assistant Collector / Sub Divisional Magistrate, Bageshwar, in Suit No. 19 / 77- 78, passed under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Said judgment and order shows that petitioner Nain Singh instituted the suit on 19.07.1978, for partition of certain land including plot No. 800, measuring 3 Nali 13 Muthi of village Bhakun Khola. Considering the fact that in the revenue record, the petitioner was recorded as co-tenure holder, said partition suit was decreed by the above 4 mentioned revenue authority, but it was directed that since the area of the plot sought to be partitioned is less than 3.11 Acres of the land, as such, in view of provisions contained in Section 178(b) of the aforesaid Act, land cannot be partitioned and the shares would be put to auction so that one person may own it and the other co-sharers may get value of their shares. It is pleaded on behalf of the petitioner that the land was put to auction and petitioner Nain Singh purchased the shares of other co-tenure holders. Consequently, the proceedings for ‘DAKHAL’ (delivery of possession) were initiated in the aforesaid suit, and finally the physical possession was handed over of the plot to the petitioner. Attention of this Court is drawn to Annexure S.A. 3 to the supplementary affidavit filed in this petition, which is copy of Dakhalnama (possession memo) dated 13.10.1980. Said document shows that in the presence of Supervisory Kanoongo, Patwari of the area, and the Village Pradhan, the possession of plot No. 800, measuring 3 Nali 13 Muthi along with other land, for which the partition was sought, was handed over to the petitioner and it is mentioned in the Dakhalnama (possession memo) that the petitioner after given physical possession of the plot, ploughed it and had sown the seeds of pulses in it. It is contended on behalf of the petitioner that against such an important documentary evidence of possession, both the court below have erred in law in holding that the possession was of the respondents, merely on the basis of the 5 irrigation slips issued by ‘Seenchpal’ of Irrigation Department. As to the oral evidence there was oath against oath from both the sides. 5) Learned counsel for the respondents argued that the concurrent finding of fact recorded by the courts below cannot be interfered with by this court in its jurisdiction under Section 482 of Cr.P.C. I do agree with the principle of law pointed out on behalf of the respondents. But, in the present case, there appears to be complete ignoring of the strong documentary evidence filed by the petitioner to show his possession over the land in question. Undisputedly, a Dakhalnama, which is signed by the Supervisory Kanoongo, Patwari and the Village Pradhan, showing that in the year 1980, in execution of decree passed in partition suit, the petitioner who himself was a co- owner, was delivered exclusive possession of the land, and merely on the basis of irrigation slips it could not have been held that he was not in possession on the date he complained that he was interrupted in harvesting the crops sown by him. 6) In the above circumstances, this Court feels it just and proper in the interest of justice, to direct the authority concerned (Sub Divisional Magistrate, Bageshwar) to pass fresh orders on the application moved under Section 145 of Cr.P.C., by the petitioner, after hearing the parties. 6 7) Therefore, for the reasons as discussed above, the petition under Section 482 of Cr.P.C. is disposed of with the direction that the impugned order dated 11.05.1992, passed by Sub Divisional Magistrate, Bageshwar, in Criminal Case No. 10 of 1984, and the order dated 20th of August 1997, passed by Sessions Judge, Almora, in Criminal Revision No. 27 of 1992, are set aside. The Sub Divisional Magistrate, Bageshwar, is directed to take a decision afresh in the matter, after hearing the concerned parties, in the light of the observations made above. (Prafulla C. Pant, J.) Dt. May 13, 2010. H. Negi 7