g; HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. M.P.No. 214/2006 APPLICANTs/ ’ Ved Vyas, and another PARTY N0. 2 VERSUS RESPONDENT Bnjra} Kumar, PARTY NO. 1 w Post for Eronouncehlent of order on h 1 1 [81 2009\ x sd/- f T.P. SHARMA Judge ;.o HXGI'I COURT OF CHEATTISGARH AT BILASPUR Cr. M.P.No. 214/2006 APPLICANTS] Ved Vyas, aged about 36 yeam, S[o PARTY NO. 2 Umesh Chand Yadav. 2. Jawahal Lal, agcd’about 33 years, S/O Umesh Chand Yadav All the resident of Village: Mudpar, Tahsil Navagarh (Shivn'narayan) Distt. Janjgir-Champa (C.G.). / VERSUS RESPONDENT ‘ Brijraj Kumar, aged about 53 years, S/ o PARTY NO. 1 ' Prahalad Prasad Yadav, R/o Village Mudpar, Tahsil Navagarh (Shivrinarayan) District Janjgir—Champa (CG). APPLICATION, UNDER SECTION 482 CRIMINAL PROCEDUE CODE. x ‘ (SB :Hon’b1e Mr. T.P.Sharma, J.) . Present: Shn' A1111 Paadey, Advocate for the applicants/ petitioners. Shri Rajendra ’I‘ripathi, Advocate for the respondent. @f ( L ORDER ": (Passed on 1 1 I 8/ 2009) ’This petition under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) is for quashment of the order dated 5/ 12/ O6 passed by the Sessions Judge, Janjgir—Champa in Criminal Revision No. 11/2006 affirming the order dated 26/ 9/ 06 passed by the Sub Divisional Magistrate, 'Janjgir—Champa in criminal case No. 140/ 2003—2004 whereby learned Sub Divisional Magistrate has declared the possession of respondent over the disputed land under Section 145 of the Code and directed the parties to (continue in possession until evicted there form in due course of law. The order is challenged on the ground that learned courts below has failed to appreciate the possession of the present petitioners, 2 months prior to the date of nling of the application under Section 145 of the Code by respondent and thereby caused serious prejudice to the petitioners. 3. The short facts giving rice to this peu'tion am, the land bearing Kh. No. 204 ama 1.29 Acersv situated at village Mixdpar was according to tho application Eed on behalf of the respondent in the possession of the respondent he used to cultivate the land. One Civil Suit NO. 407 A/O4 pending relating to same land parties are not member of same family petitioners were never in possession of the disputed land on 29/11/02 petitioners threatened the respondent that he will cut the crop. The respondent filed an application under Section 145 of the Code. on 30/ 11,!02 and also prayed for inten’m , a * custody of the_land to any independent person. Report from the police was called 3 by the Sub l. Divisional Magistrate and on the basis of such report preliminary order was passed on 3/ 12/02 and also for attachment of the order for property was passed. Present petitioners contested the case and speciiically denied the allegation of the application and alleged that petitioners had cultivated the land and they are in possession of the land and also alleged that on 7/7/02 present respondent has also lodged the report against the petitioners. 4. After an‘ording the opportunity of hearing learned Sub Divisional Magistrate has declared the possession ofthe respondent same has been ahirmed by the revisional court vide order impugned. 5. Counsel for the parties are heard. Order impugned and records of courts below perused. Learned counsel for the petitioners vehemently argued that 2 months prior to the date of filing ofthe application the petitioners were in possession but respondent has illegally tiled an application and succeeded in attachment of :the property. Learned counsel for the petitioners further submits that respondent himself admitted the possession of the petitioners on 7/7/ 02 and submitted that .o; \ g3 land was owned by grand father of the petitioners Malikram but wrongly ~ the name of Shiv Prasad was mentioned and was continued in the Revenue Record. 8. On the other hand, learned counsel for the respondent argued that respondent has adduced ocular and documentaly evidence in his support which shows possession of the respondent over the land in dispute. Khasra entry reveals the possession ofpresent respondent. 9. Lekagied counsel for the respondent further submits that in case of proceeding under Section 145 of the Code Court is only required to examine 9 the &ctual aspect of possession on the date of issuance of preliminary order or Within°2 months next before the date on which report from police officer or other information was received by the Magistrate and likelihood of ,‘1 breach of peace on the ground of possession. 10. In the present case likelihood of breach of peace is not disputed‘by'any party and evidence reveals that on the date of initiation of proceeding likelihood of breach of peace was exists concerning land in dispute. 11. As regard the question of possession is concerned present respondent/applicant of the case Brijraj has specincally deposed in his evidence that on the date of filing the petition in the year 2002 he was in possession of Kh. No. 204 area 1.29 Acers. Petition has been med on 30/ 1 1/02 factum of possession is supported by his witnesses but opposed by the petitioners and his witnesses. The proceeding under Section 145 of the Code has been initiated at the instance of present re5pondent heavy burden to prove the possession over the land on the date of nling of the application or next before 2 months from the date of filing of the appiication was on the respondent. He has also filed the copy of Khasra entry which . reveals the possession of sons of respondent. ln his cross examination he s w: @ has admittsd that he has lodged the report against the petitionem and Section 107 of the Code was initiated by the Sub Divisional Magistrate. He has also admitted in his cross examination that he has stated to police that on 7/7/02 the son of Umesh, Jawahar Lal and Ved Vyas were ploughing the field but has denied the suggestion that when he objected then the petitioners stopped ploughing the field. Brijraj has also deposed that presently land is in the name of his sons and Brijraj and their sons are in possession of the disputed land. 12. Present petitioners Ved Vyas has examined himself and deposed that his brother Jawahar Lal himself were in possession of the land and they have sown the Mahamaya Paddy over the land. Brijraj has lodged the report on 7/7/02 and proceeding under Section 107 of the Code has been initiated against both the parties. Respondent Brijraj has admitted the initiation of the proceeding at his instance but has deposed that he do not knot}? What he has stated to the police on 7/7/02, His witnesses Janakram has also admitted hrst dispute but he has also stated that he do not know what he has stated in that proceeding‘and he has also admitted that he has taken the land for 2 years in Adhiya, 13. Present petitioner Ved Vyas has deposed that on 7/7/02 when the respondent came to the field then he stopped him then respondent lodged the report that petitioners has sown the field and also hled the documents Written Ieport of the respondent and report of the police to the Sub Divisional Magistrate for mitiation of the proceeding under Sections 107 & 1 16 of the Code in which it has been specihcally mentioned that on 7/ 7/ O2 the petitioners have ploughed the held and has sown the crop. Brijraj has admitted in his evidence that proceeding under Section 107 of the Code has ‘ been initiated at his instance but he has tried to Shirk from his previous ‘ t \\ > @ #5- mpoxt. Statsment of Witnesses Janakram raveals that he used to take land in Adhiya he was also Witness of that proceeding but he has also tried to Shirk from his previous statement. Brijraj has admitted in his cross examination that on 7/ 7/ O2 petitioners were ploughing the f1e1d. 14. Learned Sub Divisional Magistrate has not considered the factum of initiation of the proceeding that too on the basis of ploughing of the field and report of dispossession of; the petitioners on 7/ 7/ 02. It is not a case of the respondent that after 7/7] O2 he has again dispossessed the petitioners a 1‘ v; or he has taken the possession or he has sown the crop after sowing the crop by the petitioner. Present petitioners have specihcally alleged that they , have sown the Mahamaya Paddy the present respondent has pleaded that‘ he has sown the Sarna Paddy. 15. Learned Sub Divisional Magistrate has recorded the finding that possession i of the present respondent is proved on the basis of ocular and documentary evidence but respondent has not filed any documents to show that he was in possession of the land in dispute and on the other hand, the Khasra entry reveals that Dhirendra, Mahendra and Yogendra were in possession over the suit land. They have not filed any application although they are sons of the respondent but respondent has not made them party specially respondent has mentioned in his application tiled under Section 145 of the Code that alone the petitioners] respondent was in possession. He has also prayed for attachment and appointment of the receiver of the land in which according to the respondent he alone was in possession. When the respondent alone was in possession then there was no propriety of \ i attachment and appointment of receiver. i .. l6. The Revenue Records reveals that his sons were in possession the Khasra entries specihcally reveals that Dhirendra and Mahendra son of Brijraj and @ minor Yogendra son of Bn'jraj werc in possession of ths property. Sub Divisional Magistxate has not considered the document and ocular evidence specially police report. Specially the report of the respondent and also report the sole basis of initiation of proceeding under Section 107 of the Code and arrived at a finding that present respondent in possession. The finding of the learned Sub Divisional Magistrate is perverse to the ocular and documentary evidence available on record. Learned Sessions Judge has also not considered the crucial question of the possession on “a 1' the date‘of initiation of the proceeding and thereby committed an illegality. 17. Thegproceedin‘g under Section 145 of the code is a emergency proceeding it only protect the immediate possession for limited period. The report dated 7/7/02 lodged by respondent’ initiation ofproceeding under Section 107 of the Code, admission of the lodging of the report and enquiry by the respondent and his witnesses show that on the date of 7/7/02, the,present petitioners were in possession of the disputed land and further attachment, dispossession and handing over the possession to the respondent causes serious prejudice to the petitioner. 18. Consequently, order impugned and order of both the courts below are not sustainable and is liable to be set aside. The petition is allowed. Order impugned and order of Sub Divisional Magistrate is hereby set aside. Respondent is directed to hand over the possession Within 15 days to the petitioners and petitioners are entitled to retain the possession over the land tjll evicted in due course of law. kg“ u; n ‘ ‘T.P.SHARMA' ‘ Judge