RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No.11 of 2003 Kanta Prasad … Revisionist Versus Vishnu S/o Nanda & others … Respondents Mr. Nagesh Aggarwal, Advocate for the revisionist Mr. Lokpal Singh, Advocate for the respondents Dated: July 15, 2011 Hon’ble Servesh Kumar Gupta, J. This revision has been directed against the judgment and order dated 23.11.2002 passed by the Additional Sessions Judge/I FTC, Haridwar wherein, in criminal revision no.325 of 1998 filed by Vishnu and two others against Sri Kanta Prasad, the judgment and order of Sub Divisional Magistrate, Roorkee dated 7.9.1998 was set aside. The dispute between Sri Kanta Prasad on the one hand and Sri Vishnu and two others on the other, pertains to an agricultural/grove land bearing Khasra No.1031, 1032 and 60 situated in village Kheri, Shikohpur, Tehsil Roorkee [now District Haridwar]. The Magistrate vide his above mentioned order in the proceedings under Section 145 Cr.P.C. declared the possession of Sri Kanta Prasad over the said land on the basis of the report of Tehsildar Roorkee dated 24.4.1997 and the copy of the extract of half-yearly Khatauni issued by the Lekhpal concerned, wherein Sri Kanta Prasad’s name was mentioned in the Column of tenure holder with a status of Part-II Class IX. Learned counsel of Sri Kanta Prasad has explained the meaning of ‘Part II tenure holder’, i.e. the one who although not a real owner but have occupied the land of other person by anyway and the real owner has not disputed the adverse possession for continuously two months or more, then his name is recorded as Part II tenure holder irrespective of the ownership of another person over the same land. The real owners are called the tenure holders of Part-I, as is adverted by a copy of Khasra 1399 Fasli issued by the same Lekhpal. In that copy of Khasra, the names of Vishnu, Akbar, Dasa and Nanda @ Nandhu are recorded as tenure holder of Part-I while Sri Kanta is recorded as the tenure holder of Part-II. Learned Sub Divisional Magistrate has recorded his finding on the basis of these documentary evidence as well as on the report of Tehsildar, Roorkee. This judgment of the learned Sub Divisional Magistrate was challenged by Sri Vishnu and others in the court of Sessions Judge and on transfer of case, in the court of Additional Sessions Judge/I FTC, Haridwar, the said judgment of Sub Divisional Magistrate was set aside. On hearing the rival submissions by the learned counsel of either of the parties and having gone through the record of the case, it appears that in the court of Sub Divisional Magistrate, none of the party has produced any oral testimony. Even the Tehsildar has not been examined in the court nor any other revenue official, who accompanied the Tehsildar at the spot or has given the report regarding the possession over the land in dispute, has been examined. Without examining either the Lekhpal or the Kanungo or Naib Tehsildar or Tehsildar whose report has been made the basis of the judgment by the Sub Divisional Magistrate, it is not expedient to base the findings solely on the same. It has been evident on the record that Sri Kanta Prasad for last 2-3 years, from the date of dispute between the parties, resides at village Chhutmalpur, P.S. Fatehpur, District Saharanpur, which is considerably away from the land in question, while Sri Vishnu and others resides in the same village where the land is situated. Learned Additional Sessions Judge has rightly opined that the disputed property’s original owner were Sri Vishnu and his father Nanda and even it is in possession of Sri Vishnu and his brothers. It appears that with the findings of Lekhpal of the area this document of Khatauni, as aforementioned pertinent to 1399 Fasli, have been acquired which is obviously has been done so, by the Lekhpal to fulfill his own vested interests. One very significant aspect of this dispute between the parties is that in the counter affidavit filed by Sri Rajendra S/o Yad Ram, who is one of the opposite party before the High Court, it has been stated in paragraph no.7 that when the learned Additional Sessions Judge turned down the judgment of the Sub Divisional Magistrate and the possession of Sri Kanta Prasad was not found by the lower revisional court, then Sri Kanta Prasad filed a civil suit no.180 of 1999 bearing title Kanta Prasad Vs. Tahir Hussain and others, in respect of the property in dispute in the court of Civil Judge (Junior Division) Roorkee. The prayer was made in that suit for seeking injunction against Sri Vishnu and others, requiring the court to order that Vishnu and others be restrained from interfering in the possession of Sri Kanta Prasad. That suit was heard and dismissed on merits on 14.5.2001. Aggrieved from the judgment of Civil Judge (Junior Division), Sri Kanta Prasad preerred a civil appeal no.19 of 2001, bearing title Kanta Prasad Vs. Tahir Hussain and others and the said appeal, after hearing the arguments of both the parties, was dismissed on merits on 21.12.2001. It is pertinent to mention that the appeal of Sri Kanta Prasad was dismissed with special cost of Rs.1,000/- payable to Sri Vishnu and others. The meaning of dismissal of this appeal is that the possession of Sri Kanta Prasad is nowhere on the disputed land. Rather it is well within the possession of Sri Vishnu and others. Learned counsel of Sri Kanta Prasad has argued that though he filed the second appeal in the High Court, it was remitted to the consolidation authorities wherein the objections of Section 9 of the Consolidation Act are lying undecided. But this fact has not been averred in any of the rejoinder affidavit nor any such rejoinder affidavit has been filed. In these circumstances, it can be inferred that in civil proceedings in the court of Civil Judge (Junior Division) as well as in the court of Additional District Judge, Sri Kanta Prasad was not found in possession. Therefore, it is not in the interest of justice for the High Court to permit Sri Kanta Prasad for agitating the issue under the garb of Section 145 Cr.P.C. Last, but not the least, the State has not been made a party in this revision by Sri Kanta Prasad. When the Sub Divisional Magistrate passed his judgment and order on the report of revenue officials from the lowest level up to that of Tehsildar, then it was desirable to hear the State also by this Court which has not been possible because Sri Kanta Prasad, the revisionist did not make them a party. In view of the above, there is no force in this criminal revision, which is liable to be dismissed. The revision is, accordingly, dismissed. (Servesh Kumar Gupta, J.) 15.07.2011 Rajeev Dang