Bombay High Court
Charan S/O Hammu Tumdam And Others vs State Of Mah. Thr. P.S.O. Devlapar ... on 5 September, 2017
Bench: P.N. Deshmukh
1 wp45.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.45 OF 2013
1) Charan s/o Hammu Tumdam,
aged 54 years, occupation :
agriculturist,
2) Bhagwan s/o Tulsiram Tumdam,
aged 54 years, occupation :
agriculturist,
3) Pyarelal s/o Tulsiram Tumdam,
aged 55 years, occupation :
cultivation,
4) Santosh s/o Tulsiram Tumdam,
aged 53 years, occupation :
cultivation,
All r/o village Pendhrai, Tahsil
Ramtek, District Nagpur. ... Petitioners
- Versus -
1) State of Maharashtra, through
Police Station Officer, Devlapar,
Tahsil Ramtek, District Nagpur.
2) Smt. Mulabai w/o Dindayal Dhurve,
aged 40 years, occupation :
household,
3) Yeshu s/o Shamlal Tumdam, aged
38 years, occupation : cultivation,
Respondent nos.2 and 3 r/o village
Pendhrai, Tahsil Ramtek,
District Nagpur. ... Respondents
-----------------
Ms. S. Jachak, Additional Public Prosecutor for respondent no.1.
----------------
::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:06:53 :::
2 wp45.13
CORAM : P.N. DESHMUKH, J.
DATED : SEPTEMBER 05, 2017
ORAL JUDGMENT :
None for petitioners. Record reveals that petitioners were not
represented on earlier dates and on the last date, petition was posted for
today for passing dismissal order. However, instead of dismissing the
petition for default, same is disposed of on merits by considering the
record and on hearing learned Additional Public Prosecutor for respondent
no.1. None for respondent nos.2 and 3 also.
2) This petition takes exception to the order dated 3/9/2012
passed by learned Additional Sessions Judge, Nagpur by which order
dated 7/5/2010 passed in Criminal Application No.159/2002 by learned
Sub-Divisional Officer, Ramtek under Section 145 of Code of Criminal
Procedure is set aside vide which petitioners were restrained from
obstructing alleged possession of respondent nos.2 and 3 on field Survey
No.74 admeasuring 0.48 HR of Mouza Pendhrai, Taluq Ramtek, District
Nagpur. Petitioners are original respondent nos.2 to 5 while respondent
nos.2 and 3 are original revisional applicants, who by raising objection to
the order passed by learned Sub-Divisional Officer, Ramtek had contended
that petitioners herein had wrongly claimed their ownership and
possession over the aforesaid land and they got Criminal Application
3 wp45.13
No.159/2009 filed before the Court of Sub-Divisional Officer in
connivance with respondent no.1 and sought order in their favour.
However, it is the case of respondent nos.2 and 3, who are applicants
before revisional Court, that aforesaid land is their ancestral property,
which has come to their share and they are cultivating the same after
getting it mutated in their names in the record of rights and thus,
petitioners have no right upon the same as at no point of time petitioners
were possessing said piece of land nor they have any documentary
evidence to establish their claim. It is submitted that learned Sub-
Divisional Officer without considering that no document like 7/12 extract
is in favour of petitioners passed order in their favour holding them to be
in possession of aforesaid land and restraining respondent nos.2 and 3
from interfering with their alleged possession.
3) Since neither of the Counsel for parties except learned
Additional Public Prosecutor is present, I perused the record and
proceedings in Criminal Case No.159/2009 decided by learned Sub-
Divisional Officer, which was initiated on the basis of report lodged by
respondent no.2 on 23/6/2009 wherein she has categorically stated that
she along with petitioner no.1 Charan Tumdam and her sister-in-law was
holding field Survey No.74 situated at village Pendhrai. For establishing
her possession, she has filed on record affidavits of Bakru Tekam,
Ramprasad Sitaram and Shankar Kumbhre wherefrom it is revealed that
4 wp45.13
by virtue of partition and possession, respondent no.2 was cultivating
field Survey No. 74 of village Pendhrai.
4) Learned Sub-Divisional Officer appears to have not considered
the fact that there was no documentary evidence in the form of 7/12
extract, mutation entry or any gift deed in favour of petitioners and had
passed order dated 7/5/2010. In fact, it is noted that respondent nos.2
and 3 by filing on record 7/12 extract of the year 2006-07 in respect of
field Survey No.74, which is admissible in evidence, had established their
possession over field Survey No.74. In fact, these documents along with
others do not establish possession of petitioners over aforesaid land. It is,
therefore, noted that learned Sub-Divisional Officer has failed to consider
these documents while drawing inference of possession of petitioners.
5) In view of the facts as aforesaid, since on the strength of 7/12
extract and other documents respondent nos. 2 and 3 have established
their possession over field Survey No.74, which documents appear to
have been neglected to be considered by learned Sub-Divisional Officer,
the revisional Court appears to have rightly found it necessary to interfere
with his decision and thus, allowed the revision against which present
petition arises.
6) In view of above, there appears no reason to interfere with the
impugned order. The petition is, therefore, dismissed. Rule is discharged.
5 wp45.13
No order as to costs.
JUDGE
khj
