Criminal Revision No.1749 of 2006. -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 6.5.2008 Raj Singh and others .... Petitioners vs State of Punjab and others ..... Respondents. Before : Hon'ble Mr. Justice R.S.Madan. Present: Mr.S.S.Narula, Advocate, for the petitioners. Mr.R.S.Rawat, Assistant Advocate General, Punjab. Mr.Girish Agnihotri, Senior Advocate with Mr.I.P.S.Kohli, Advocate, for the private respondents. R.S.Madan, J. This revision is directed against the order dated 11.8.2006, rendered by the Court of Shri Birinder Singh, learned Additional Sessions Judge, Ferozepur, vide which, it accepted the revision petition against the order dated 26.6.2002, rendered by the Sub-Divisional Magistrate, Ferozepur, and directed that the possession of land, in question, be delivered to Satnam Singh and others, first party. The facts, in brief, emerging out of the Calendar, presented under Section 145 Cr.P.C., titled as “Satnam Singh and others, the first party and Raj Singh and others, second party” are that there was a dispute with regard to the possession of 469 kanals of land, situated in Village Gulam Hussain Wala. This land belongs to the State Government, but Satam Singh and others, the first party and Raj Singh and others, second party were claiming possession, over the same. On presentation of the Calendar, under Section 145 Cr.P.C., in pursuance of the provisions of Section 146 (1) Cr.P.C., the SHO, Police Station Sadar Ferozepur, was appointed as a Receiver, and the second party was ordered to be summoned. The crop Criminal Revision No.1749 of 2006. -2- ***** standing, in the land, was harvested, in the presence of the Receiver, referred to above, and the accounts, of the sale proceeds were maintained by him. A sum of Rs.47,049/- on account of the sale proceeds was deposited in the Treasury, though the total amount of sale proceeds was Rs.66,185/-, wherefrom the expenses were deducted. Raj Singh, complainant and 19 others, the members of the second party were held to be in possession of the land, in dispute, at the time of initiation of the proceedings under Section 145 Cr.P.C., by the Sub-Divisional Magistrate, Ferozepur. During the inquiry, in the proceedings under Section 145 Cr.P.C., the evidence of the parties were recorded. Ultimately, the Sub- Divisional Magistrate, Ferozepur came to the conclusion, that it was not a fit case, in which, the proceedings under Section 145 Cr.P.C., were required to be initiated. He further held that it was only a case of breach of peace. Accordingly, the Sub- Divisional Magistrate, Ferozepur, vide order dated 26.6.2002, dropped the proceedings, in the calendar, under Section 145 Cr.P.C., and ordered the redelivery of possession of land, in dispute, in favour of Raj Singh and others, the second party, from whom, the same had been taken by the Receiver, as also directed that the sale proceeds of the crop be handed over to them. Feeling aggrieved, against the order dated 26.6.2002, passed by the learned Sub-Divisional Magistrate, Ferozepur, Satnam Singh and others (first party in the proceedings under Section 145 Cr.P.C.) filed Criminal Revision No.215 of 2.8.2002/5.9.2005, which was accepted by Additional Sessions Judge, Ferozepur, vide order dated 11.8.2006, whereby he directed the Receiver, to deliver the actual possession of the disputed land to Satnam Singh and others. Criminal Revision No.1749 of 2006. -3- ***** Dissatisfied with the order dated 11.8.2006, petitioners Raj Singh and others filed the instant revision petition. I have heard the learned counsel for the parties and have also gone through the record of the case, carefully. In the proceedings under Section 145 Cr.P.C., the court is mainly concerned with the possession of the property on the date of preliminary order, and dispossession, if any, within two months, prior to that date. The court is not required to decide, either title to the property or right of possession of the same. Section 145 Cr.P.C. does not confer any title, on a party, to remain in possession of the disputed property. The first party, no doubt, produced the khasra girdawari, revealing that for the year 1998-99, 1999-2000, the owner was shown to be in possession of the land, in dispute. From Rabi 2000, the members of the first party were shown to be in possession of the land, in dispute, as unauthorised occupants. The circumstances, under which, they allegedly came into possession of this land, from the Government, were not proved. No document was produced by Satnam Singh and others, the first party, before the Sub-Divisional Magistrate, as to how it came into possession of the land, in dispute, from Rabi 2000. On the other hand, the witnesses produced by the second party, before the Sub-Divisional Magistrate, clearly indicated that the members thereof, were in possession of different portions of the disputed land. Even, the members of the first party, were residents of different villages, and their going to the land, in dispute, to cultivate the same, did not appeal to reason. No doubt, presumption of correctness is attached to the khasra girdawari entries and presumption of truth is attached to the jamabandi entries. Criminal Revision No.1749 of 2006. -4- ***** However, the presumption is rebuttable. The same stood rebutted, as would be discussed, hereinafter. At the time of passing the order under Section 146 (1) Cr.P.C., the Receiver was appointed by the Sub-Divisional Magistrate, Ferozepur. The Receiver obtained possession of the land, in dispute, from Raj Singh and others. There was a standing crop, in a portion of the land. The standing crop had been sown by Raj Singh and others and was harvested by the Receiver, and sale proceeds thereof were deposited in the Treasury. The witnesses, examined by Satnam Singh etc., the first party, in the court of Sub- Divisional Magistrate, Ferozepur, in their cross- examination, admitted that there was an apprehension of breach of peace, on account of the threats, hurled out by the second party. There was nothing, in their statements, that the members of the second party, ever came to allegedly take possession of the land, because there was no reason to do so, on their part, as they were already in possession of the said land. In these circumstances, the court of the Sub- Divisional Magistrate was right, in coming to the conclusion, that the police had an authority to initiate proceedings under Section 107/151 Cr.P.C. to enforce peace, so that both the parties did not enter into a conflict. The Sub- Divisional Magistrate was also right in coming to the conclusion that it was, thus, not a fit case in which the proceedings under Section 145 Cr.P.C., were required to be initiated. The members of the first party also did not claim their possession, as against of the members of the second party, but claimed possession of different portions of land, as against some other persons. The Court of Sub- Divisional Magistrate, thus, rightly came to the conclusion that it would be a misuse and abuse of the process, to continue the proceedings, under Section 145 Cr.P.C., as the members of the first party admitted that the Criminal Revision No.1749 of 2006. -5- ***** members of the second party never tried to dispossess them together. The order of the court of Sub-Divisional Magistrate, in this regard, was passed on the correct appreciation of the evidence produced before it. The court of learned Addition Sessions Judge was, however, wrong in coming to the conclusion that if there was any breach of peace, the Sub- Divisional Magistrate could press into service the proceedings under Section 107/151 Cr.P.C., and as such, he was wrong in dropping the proceedings under Section 145 Cr.P.C. Such a conclusion, arrived at, by the court of Additional Sessions Judge, is not correct. Since, at that time, there was no apprehension of breach of peace even, it was left in the hands of the police, to initiate the proceedings, under Section 107/151 Cr.P.C. as and when the occasion arose. The order passed by the Court of Additional Sessions Judge on 12.8.2006 accepting the revision is, therefore, perverse and illegal. The next question that arises for consideration is, as to whether, the court of learned Addition Sessions Judge vide order date 12.8.2006 could direct the Receiver that the possession of the land be delivered to Satnam Singh etc., the revision petitioners, before him and the first party in the proceedings under Section 145 Cr.P.C. As stated above, at the time of passing the order under Section 146 (1), in the proceedings under Section 145 Cr.P.C., the SHO was appointed as Receiver and he was directed to take possession of the land, in dispute, and keep accounts of the crops thereof. He took possession of the land, in dispute, from Raj Singh and others, the second party, in those proceedings. Crop in a portion of the land, having been sown by Raj Singh and others was standing. The same was got harvested and the sale proceeds thereof in the sum of Rs.66,185/- were deposited in the treasury. When the proceedings were dropped by the Court Criminal Revision No.1749 of 2006. -6- ***** of Sub- Divisional Magistrate, the possession of the land, in dispute, was ordered to be redelivered to Raj Singh and others, the members of the second party. Even a sum of Rs.47,049/- on account of the sale proceeds of the crop, after deducting the necessary expenses, were ordered to be paid to Raj Singh and others. Raj Singh and others, the members of the second party were held to be in possession of the land in dispute, at the time of initiation of the proceedings under Section 145 Cr.P.C., by the Sub- Divisional Magistrate, Ferozepur. It was also held by the court of Sub- Divisional Magistrate that Satnam Singh and others, the members of the first party, had no connection with the land in dispute and they were not in possession of the same at the time of the initiation of the proceedings under Section 145 Cr.P.C. Ultimately, the possession of the land, in dispute, at the time of dropping the proceedings, by the court of Sub- Divisional Magistrate vide order dated 26.6.2002 was redelivered, in favour of Raj Singh and others. After the redelivery of possession to Raj Singh and others, by the Receiver through a partwari, a report in Rapat Roznamcha Waquiati, was entered. Chanan Singh, Patwari, confirmed the factum of redelivery of possession of land, in dispute, in favour of Raj Singh and others, from whom, the same had been taken, at the time of initiation of proceedings under Section 145 Cr.P.C. These facts clearly rebutted the entries, regarding possession of Satnam Singh and others, in respect of the land, in dispute, if any, in existence, in some of the khasra girdwaris and jamabandis. Once the possession of the land had been redelivered, in favour of Raj Singh and others, from whom, the same had been taken, at the time of the initiation of proceedings under Section 145 Cr.P.C., it is not known as to how the court of the Additional Sessions Judge, vide order dated 11.8.2006 could direct Criminal Revision No.1749 of 2006. -7- ***** the Receiver to deliver the possession of the land, in dispute, in favour of Satnam Singh and others when it had already been redelivered in favour of Raj Singh and others. In Jhunamal @ Devandas vs State of Madhya Pradesh and others 1998 (4) SCC 452, it was held that an order made under Section 145 Cr.P.C., deals only with the factum of possession of the party, as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the Civil Court. The unsuccessful party, therefore, must get relief, only in the Civil Court, by filing a suit for declaration and prove a better right to possession. The Civil Court had jurisdiction to give a finding different from that which the Magistrate had reached. It was further held in the aforesaid authority, that the expression “Civil Court' used in Jhunamal's case (supra) means competent court and not necessarily a Civil Court, as commonly understood. In Kashmir Singh vs Bakhshish Singh 1997 (4) RCR (Criminal) 560, it was held that Section 145 Cr.P.C., deals only with the factum of possession of the party, as on a particular day, and does not confer any title on it, to remain in possession of the disputed property. The unsuccessful party must get relief, only in the Civil Court. Under these circumstances, the Court of Additional Sessions Judge, while acting as a Revisional Court had no jurisdiction, whatsoever, direct the delivery of possession of the land, in dispute, in favour of the first party, namely Satnam Singh etc., when the possession of the land, had already been redelivered in favour of the members of the second party, namely Raj Singh and others. The order dated 11.8.2006 passed by the court of Additional Sessions Judge ordering the delivery of possession of the land, in dispute, in favour of Satnam Singh and others, is not only without jurisdiction, but is completely illegal and Criminal Revision No.1749 of 2006. -8- ***** perverse. In view of the above discussion, it is held that the order dated 11.8.2006, passed by the learned Additional Sessions Jude, in revisional jurisdiction is illegal, perverse, arbitrary and capricious. It is liable to be set aside. For the reasons recorded, hereinbefore, the revision petition is accepted. The order dated 11.8.2006 rendered by the learned Additional Sessions Judge, Ferozepur, is set aside and the order dated 26.6.2002 rendered by the Sub- Divisional Magistrate, Ferozepur, is restored. 6.5.2008. (R.S.Madan) vs Judge