1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER BRAM PRAKASH. V. KARAN NATH & OTHERS. (P.) (1 to 4 P-1, 5 to 9 P-2) S. B. CRIMINAL MISC. PETITION NO.934/2005 under Section 482, Cr. P.C., against the Order dated 28.07.2005, passed by the Additional Sessions Judge, Ratangarh, in Criminal Revision No. 40/96 (41/2002). DATE OF ORDER: DECEMBER 3, 2008. PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. H.S.Shreemali, for Petitioner (s). Mr. O.P.Rathi, Public Prosecutor. Mr. A.D.Charan for Respondents No. 1 to 4. Mr. M.S. Purohit, for Respondent No.5. BY THE COURT: Petitioner – Party No.1 in proceedings No.14/93 under Sections 145 & 146, Cr.P.C., before the Court of Sub-Divisional Magistrate (SDM), Ratangarh - preferring this petition request reversal of order of learned Additional District Judge, Churu dated 28.7.05 in Revision No.40/96, affirming Magisterial order dated 30.9.96, according to which – declaring possession of party No.1, directed is possession to him. Considered arguments of learned counsels for the petitioner, respondents and of learned Public Prosecutor and perused record and orders of the learned courts-below. 2 Proceedings originally were initiated on complaint of SHO, Dungargarh and in the complaint - respondents No. 1 to 4 are referred as Party No.1 and petitioner along with respondents No. 5 to 9 are referred as Party No.2 . According to complaint of SHO (1) on 1.8.93, P. Bram Prakash submitted written report alleging that Jagidsh and others entering in his field have caused hurt to them and on this report, FIR No.144/93 for the offences under Sections 307, 447 and 34, IPC, is registered, (2) on 1.8.93, Bhadarnath (R 1) lodged the report alleging that entering in field of their Khatedari, Bram Prakash & others entering, caused hurt and on this report, FIR No.145/93 for the offences under Sections 147, 148, 149, 447 and 323, IPC, registered. (3) According to revenue record, field bearing Nos. 400/401 is in favour of Dev Dutt who has expired and Karan Nath P 1 asserting to have purchased from Bram Prakash for a consideration of Rs.31,000/- and showing a document receipt, claims field to be his own (4) whereas Bram Prakash denying, sole claims to be his and (5) according to complaint, Karan Nath along with some persons forcely entered the field, so quarrel occurred and offences committed, (6) above FIRs are registered and many are injured. (7) enmity between the parties and their assertions and efforts of their possession, every possibility is of grave violence. Apprehending serious breach of piece, SHO requested for initiation of proceedings against both parties under Sections 106 and 116 (3), Cr.P.C. and also initiation and appointment of receiver as per provisions of Sections 145 and 146, Cr.P.C. Learned Magistrate, registering proceedings on 13.8.93 under Sections 145 & 146, Cr.P.C. also attaches land and appointed Tehsildar as receiver. Submitting reply, petitioner stated that (1) Their's is continuous long possession, (2) rival party entering field on 1.8.93 prevented them from building up a hut and and injuring many of them tried to establish possession, for which FIR (145/93) registered and charge-sheet is presented, (3) this field (No.400/4001) is of their father Dev Dutt in whose favour revenue record also is. (4) Shri Dev Dutt died on 19.12.86 3 and this party being successors are owner in possession, (5) never sold to Karan Nath or anyone and any such assertions and receipt are false. R 2 to 5 & P 2 stated that (i) since many years, this land (No.400/ 401) is in their possession and they are cultivating peacefully (on behalf of P) since many years, (ii) field owned by Dev Dutt and after his expiry, they (sons Bram Prakash, Ved Prakash and Om Prakash along with three sisters and their mother) are successors of which only Bram Prakash and his mother Smt. Chandrawati reside in village and rest others reside out many years – Smt. Chandrawati very old – possession exclusively of Bram Prakash. (iii) As every year, this year too, on asking of Bram Prakash and his mother Smt. Chandrawati on 1.8.93, they went for cultivation and when raising hut rival party attakced them in the afternoon. (iv) Respondents No. 5 to 9 submitted that as niece of Karan Nath is Police A.S.I., so to exert pressure, FIR (No.145/93) registered and entire story concocted one. Respondents No. 1 to 4, the Party No.1 in their reply, submitted that (i) since 30 years uninterrupted – peacefully is in their possession, (ii) after demise of Dev Dutt, his son Bram Prakash sold this land for Rs.31,000/- P to Karan Nath and obtaining sale amount Rs.31,000/-, executed a receipt, (iii) rival party (the P.) was never in possession in last thirty years, (iv) adjoining southern field No.416 of about 48 bighas is also owned and possessed by them (R 1 to 4 Party No.) (v) rival party is adamant to dispossess them, & (vi) for dispossessing them forcibly and illegally Bram Prakash and others attacked on them. On behalf of respondents No. 1 to 4 Karan Nath himself and two witnesses examined and for petitioner, in addition total 5, including him, are examined. On record are a alleged receipt of Rs.31,000/- and revenue records. Learned Magistrate, vide impugned order, has declared possession of respondents Karan Nath & others. Learned counsel for the petitioners argued that (1) revenue record 4 is in the name of father of petitioner. (2) Possession of land taken from petitioner – Patwari who was present at the time of taking possession by Tehsildar, as stated so. (3) Though the receipt produced by R. is held to be not admissible by the trial Court, but still, receipt is considered for by both the courts-below and inference, on the basis of it taken in favour of R 1 to 4. (4) Purely, on the basis of surmises, is inference that the petitioner has sold the land to R-1. (5) Petitioner unless and otherwise strongly proved, it is assumed that the title holder is in possession and petitioner is holder. Argued that in course of proceedings under Section 145-146 possession/dispossession within immediately preceding two months is to be looked into and the petitioner was clearly in possession and if R 1 to R 5 have any right, this is to be established by revenue or Civil Court. Learned counsel for respondents No. 5 to 9 supported contentions of petitioner. Learned counsel for respondents No. 1 to 4 submitted that petitioner was never in possession - Considering allegations of P. itself is apparent that petitioner was never in possession for last 30-40 years – petitioner himself never cultivated – petitioner alone is not successor of Shri Dev Dutt – concurrent is the findings of Executive Court and of Revisional Court. Submitted that as order is affirmed by the revisional Court, so this petition is not maintainable being of the nature of appeal/revision over and after dismissal of petitioner's revision. Learned Public Prosecutor submitted that on the basis of strong evidence is the finding of possession. Considered arguments and perused the record and impugned order which is affirmed by the revisional Court vide order dated 28.7.05. Concurrent are the findings about possession of R 1 to R 4 and arriving at this conclusion, impugned order is for restoring possession to R 1 to R 4. The evidence and other circumstantial matters are well dealt with by the courts-below. In the context of above arguments, from the record 5 also appear that - (i) Revenue record is in the name of father of petitioner – who expired in the year, 1986 – till now, revenue record in favour of Dev Dutt's is; (ii) As per evidence, Shri Dev Dutt was a teacher who not appeared to have ever cultivated this land; (iii) P. (Bram Prakash) has two brothers and three sisters who alleged to have not residing in village and none of them in present matter in any capacity; (iv) Just adjacent to disputed land No.400/401 is land No.416 admittedly owed and possessed by R 1 to R 4; (v) R 5 to R 0 are said to have been cultivating on behalf of the petitioner – on asking of P. and his mother, on/and also in that year; (vi) As per P. & R 1 to R 4 at the time of alleged incident of 1.8.93, R 1 to R 4 some what in process of making hut for cultivation; (vii) As per report of Receiver taking possession, same was taken in presence of both the parties – possession of any is not mentioned in memo – bears signatures of Patwari – so statement of Patwari, in some other criminal case as above argued is not in accordance with memo of attachment; In petitions under Section 482, Cr.P.C., and particularly when concurrent are the conclusions with reasons of the trial and revisional Court, then very minute and elaborate probing of factual aspects (unless absurd and arbitrary) is not warranted in petitions under Section 482, Cr.P.C. Considering reasoning and conclusions of trial Court and of the revisional Court too, and for the above factors, the petition does not have any force. As per memo of the receiver, the land was attached and taken possession on August, 93 in presence of both the parties when major part of land was not under cultivation and possession is now being given as per impugned order. The possession can be restored or given or 6 continued as per directions of the revenue civil court as and when, if any. The parties, if they so like, are at liberty to get their rights determined by the Civil/Revenue Court. Accordingly, this petition is rejected - order dated 30.9.06 as affirmed by the revisional Court in Revision No.40/96 is upheld. (C. M. TOTLA), J. scd 7