Bombay High Court
Sambhaji Dattatraya Kide vs The State Of Mah And Ors on 26 October, 2016
Bench: V.K. Jadhav
1 CRI WP 7.2009.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 07 OF 2009
Sambhaji s/o. Dattatraya Kide,
Age. 40 years, through his G.P.A.
Shri. Digambar S/o Sambhaji Kide,
Age. 59 years, Occu. Pensioner
and Agri,. R/o. Manaspuri,
Tq. Kandhar, Dist. Nanded. ....PETITIONER
Versus
1.
State of Maharashtra,
through its Tahsildar at
Kandhar, Dist. Nanded.
2. Govind S/o. Laxman Kide (Died),
3. Bhaurao S/o. Govind Kide (Died),
4. Ishwar S/o. Govind Kide,
Age. Major, Occu. Agril,
R/o. Manaspuri, Tq. Kandhar,
Dist. Nanded.
5. Vithal S/o. Govind Kide,
Age. Major, Occu. Agril,
R/o. Manaspuri, Tq. Kandhar,
Dist. Nanded.
6. Madhav S/o. Govind Kide,
Age. Major, Occu. Agril,
R/o. Manaspuri, Tq. Kandhar,
Dist. Nanded.
7. Laxmikant S/o. Gangadhar Mukhedkar,
Age. Major, Occu. Profession,
R/o. Kandhar, Dist. Nanded.
::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:59:26 :::
2 CRI WP 7.2009.odt
8. Pundalik S/o. Govind Kide,
Age. 55 years, Occu. Agril.
R/o. Manaspuri, Tq. Kandhar,
Dist. Nanded. ....RESPONDENTS
...
Advocate for Petitioner : Mr Deshmukh Arvind
APP for Respondents: Mr A R Kale
Advocate for Respondents : Mrs A N Ansari For R 7, Mr
A P Hande h/f A M Gaikwad For R No. 4 And 8.
...
CORAM : V.K. JADHAV, J.
Dated: October 26, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order dated 31.7.1990
passed by the Executive Magistrate, Kandhar, initiating
proceeding thereby under the provisions of Sec 145 of
the Code of Criminal Procedure in respect of the land
survey number 46 and 47 admeasuring 30R and 17R
respectively situated at village Manaspuri, District
Nanded in file No.79/A/MG/145/CRPS/8, the non-
applicants therein preferred criminal revision
no.158/1990 and the learned Additional Sessions
Judge, Nanded by its judgment and order dated
4.9.1994 quashed and set aside the order of executive
Magistrate, Kandhar and remanded the matter to the
lower court with a direction to add necessary parties in
the original proceedings and give added parties an
3 CRI WP 7.2009.odt
opportunity to file their say and permit both the sides to
lead evidence in support of their rival contentions. It is
to be mentioned here that, in the original proceedings
started in the year 1990, the father of the present
petitioner was not a party, however, in criminal revision
no.158/1990, father of the petitioner namely Datta
Sambhaji Kide also joined as a revisional petitioner
alongwith other original non applicants.
2. After remand as aforesaid, the learned Executive
Magistrate, Kandhar by order dated 31.5.1995 held that
the disputed land was in the possession of Laxmikant
Gangadhar Mukhedkar (respondent no.7 herein)
alongwith Madhav Govind Kide (respondent No.6
herein). Being aggrieved by the same, one of the non-
applicant namely Pundlik Govind Kide preferred
criminal revision no.180/1995 and the learned
Additional Sessions Judge, Nanded by judgment and
order dated 22.10.2002 again remanded the matter to
the Executive Magistrate for the reason that the
Magistrate has not considered the evidence placed on
record.
4 CRI WP 7.2009.odt
3. Thereafter, the learned Executive Magistrate by
order dated 1.1.2003 held that, Laxmikant Gangadhar
Mukhedkar (respondent No.7) herein is in possession of
the disputed land survey no.46 admeasuring 0.30R and
Survey No.47 admeasuring 0.17R situated at village
Manaspuri, Tq. Kandhar, District Nanded. The learned
Executive Magistrate has further directed the parties to
approach the Civil Court in terms with their contentions
about sale and purchase of aforesaid lands time to time.
Being aggrieved by the same, one of the non-applicant
Pundlik Govind Kide has preferred criminal revision
no.55/2003 before the Adhoc Additional Sessions
Judge, Kandhar, and the learned Adhoc Additional
Sessions Judge, Kandhar by judgment and order dated
30.4.2008 dismissed the revision thereby confirming the
order passed by the Executive Magistrate dated
1.1.2003. Hence, this writ petition.
4. The learned counsel for the petitioners submits
that, in the original proceedings initiated in the year
1990 on the basis of report of the P.S.I. and by
conducting preliminary inquiry, the possession of the
5 CRI WP 7.2009.odt
aforesaid disputed land was taken from the father of the
petitioner's by Tahsildar and accordingly, the
proceedings under section 145 came to be initiated
thereafter. The learned counsel submits that, even
though, possession of the aforesaid land was taken from
the deceased father of the petitioners the learned
Executive Magistrate by order dated 31.7.1990
erroneously held that one Laxmikant Gangadharrao and
Madhavrao Govindrao (respondents No.6 and 7 herein)
were in possession of the aforesaid disputed land and
thus restored their possession. In a criminal revision
No.158/1990 before the Sessions Court, Nanded the
deceased father of the present petitioner joined as a
revisional petitioner alongwith the other non-applicants
and the Additional Sessions Judge, Nanded by order
dated 4.9.1994 remanded the matter to the Executive
Magistrate with a direction to add necessary parties in
the original proceedings as already referred and give
them an opportunity to file their say and also to lead
their evidence. Learned counsel submits that, in
paragraph no.6 of the said order the learned Additional
Sessions Judge has observed that on 8.12.1978 one sale
6 CRI WP 7.2009.odt
deed was executed in favour of Datta Sambhaji
(deceased father of the present petitioner) by the owner
of survey no.46 and 47 namely Govinda, the possession
of the property was also delivered in his favour and that
till taking possession of the suit lands by the
Government, it was in possession of the Datta
Sambhaji. In the light of these observations, the
learned Additional Sessions Judge, Nanded while
deciding the Criminal Revision No.158/1990 observed
that, Datta Sambhaji (deceased father of present
petitioner) was necessary party to the proceedings and
accordingly remanded the matter with directions as
mentioned above. Learned counsel submits that, even
thereafter, in the original proceedings before the
Executive Magistrate, Kandhar, after remand, deceased
father of the petitioners was not made as party and even
after second remand, he was not made as party to the
proceedings. Learned counsel submits that, on this
ground alone, the matter is fit to be remanded to the
Executive Magistrate again by setting aside the order
after remand passed by the Executive Magistrate dated
1.1.2003 and confirmed by the Adhoc Additional
7 CRI WP 7.2009.odt
Sessions Judge, Kandhar by order 30.4.2008 in
criminal revision no.55/2003.
5. None present for the respondents no.5 and 6.
6. Learned counsel for respondent no.7 submits that,
after second remand, the learned Executive Magistrate
has directed the parties to approach the Civil Court to
establish their rights in terms of the sale and purchase
of the disputed land time to time. The said order is also
confirmed by the Adhoc Additional Sessions Judge,
Kandhar by order dated 30.4.2008 in criminal revision
no.55/2003. Learned counsel submits that, object and
scope of section 145 of the Cr.P.C. is only to provide a
speedy remand for the prevention of breach of peace
arising out of disputes relating to immovable property
by maintaining one or other of the parties in possession.
The Executive Magistrate is not empowered to decide the
title over the question of a valid possession of any of the
parties over the disputed land. Learned counsel further
submits that, so far as deceased father of the present
petitioner namely Dattatraya Sambhaji is concerned, he
8 CRI WP 7.2009.odt
died on 9.6.1993 i.e. during the pendency of Criminal
Revision No.158/1990. However, legal heirs i.e. present
petitioner did not join themselves in the said criminal
revision by substituting their deceased father. Even in
the subsequent proceeding, they did not join as parties
to pursue the contentions raised by their deceased
father in the said Criminal Revision No.158/1990.
Furthermore, even though, learned Magistrate by order
dated 1.1.2003 held the possession of respondent
Laxmikant Mukhedkar and respondent Madhav Govind
Kide over the disputed land, the present petitioners did
not prefer any revision and even did not bother to join
said revision as a party. Even though learned Executive
Magistrate in the order dated 1.1.2003 directed the
parties to approach the Civil Court to establish their
rights, the petitioners still this date have not
approached the Civil Court. Learned counsel submits
that, thus, there is no substance in the writ petition and
writ petition is liable to be dismissed.
7. I have also heard the learned counsel for
respondent Nos.4, 8 and learned APP for respondent
9 CRI WP 7.2009.odt
No.1 State.
8. So far as object and scope of Section 145 of the
Code of Criminal Procedure is concerned, the Executive
Magistrate is mainly concerned with the possession of
the property in dispute on the date of the preliminary
order and dispossession, if any, within two months prior
to that date. It is well settled that, Executive Magistrate
is not required to decide as to the title of the property or
right of the possession of the same. Even though
learned Executive Magistrate by order dated 1.1.2003
directed the parties to approach the Civil Court none of
the parties approached the Civil Court and respondents
No.6 and 7 herein are in possession of disputed land.
Furthermore, even though deceased Datta Sambhaji
(father of the present petitioner) had joined himself in
Criminal Revision No.158/1990, he died during the
pendency of said criminal revision, however, his legal
heirs were not taken on record, nor the petitioner
approached to the Executive Magistrate in the
subsequent proceeding after second remand, which
came to be disposed off by the learned Executive
10 CRI WP 7.2009.odt
Magistrate in the year 2003.
9. Under these circumstances, no purpose would be
served by remanding the matter to the Executive
Magistrate again when the petitioners slept over their
right for years together and, did not bother to institute
any civil suit to get their rights established.
10.
In view of the above and in the facts and
circumstances of the present case, I do not find any
merit in this writ petition. Hence, order.
O R D E R
I. Writ Petition is hereby dismissed.
II. Rule discharged.
III. Writ Petition is accordingly disposed off.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
