Norbodia Gour vs The State Of Assam And Anr
2022 Latest Caselaw 4049 Gua

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GAHC010105572016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Rev.P./13/2016

            NORBODIA GOUR
            D/O LT. NANKU GOUR VILL- DAYAL BASTI, BOKAJAN, P.O. and P.S.
            BOKAJAN DIST. KARBI ANGLONG, ASSAM. PIN- 782480

            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY -PUBLIC PROSECUTOR, ASSAM.

            2:SRI OMPRAKASH JAISWAL
             S/O RAM SAGAR JAISWAL VILL- WARD NO. 4
             BOKAJAN TOWN
             P.O. and P.S. BOKAJAN DIST. KARBI ANGLONG
            ASSAM
             PIN - 782480

Advocate for the Petitioner   : MR.M H LASKAR

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

VERDICT (CAV) Date : 20-10-2022

Heard Mr. M.H. Laskar, learned counsel for the petitioner. Also heard Mr. S. Mitra, learned counsel for the respondent No.2.

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2. This revision petition under Section 401, read with Section 397 of the CrPC, is directed against the order dated 18.11.2015, passed by the learned Executive Magistrate, Bokajan in Karbi Anglong, in M.R. Case No.26/2012 (old M.R. Case No.15/2001).

3. It is to be mentioned here that vide the impugned order, dated 18.11.2015, the learned Executive Magistrate, Bokajan in Karbi Anglong has dismissed the M.R. Case No.26/2012 and declared possession of the disputed land in favour of the second party and directed the Officer-in-Charge of Bokajan Police Station to hand over the possession of the disputed land in favour of the second party.

4. The factual background leading to filing of the present petition may be briefly stated as under:-

"On 24.02.1998, the petitioner/first party, Smt. Norbodia Gour has

mortgaged 8 Bighas of land in favour of the respondent No.2, Sri Omprakash Jaiswal, on consideration of a sum of Rs.20,000/. But, he never took possession of the land and allowed the petitioner to occupy, possess and cultivate the land in ' adhi' system. Thereafter, the petitioner with a view to redeem the mortgaged land, decided to sell one bigha of land out of 8 Bigha, at a price of Rs.65,000/-, @ Rs.13,000/- per Katha. The respondent No.2 expressed his willingness to purchase her one Bigha land and accordingly, a sale deed was executed between the parties and as the petitioner is a poor and illiterate lady, the sale deed was prepared by the respondent No.2 and on good faith; the petitioner had put her signature on the sale deed, prepared by the respondent No.2. The respondent No.2 was liable to pay a sum of Rs.45,000/- to the Page No.# 3/10

petitioner, after deducting the mortgage amount of Rs.20,000/-.

But, he paid only Rs.13,000/- and took possession of one Bigha of land but subsequently, the petitioner came to know that the respondent No.2 was trying to obtain Patta in respect of another 1 Bigha 4 Katha 4 Lessas of land, by way of forged sale deed. Then the petitioner lodged a complaint on 15.12.2000, upon which the C.R. Case No.1131/2000, under Section 468/420/406 IPC, has

been registered with the Magistrate 1 st Class, Diphu and the learned Magistrate, then issued summons to the respondent No.2, vide order dated 20.12.2000. Thereafter on 18.05.2001, when the petitioner sent her farmers to plough her land, measuring 7 Bighas, the respondent No.2 illegally entered into the said land and claimed that he is the owner of a plot of land measuring 2 Bigha 4 Katha and 4 Lessa, out of 8 Bighas of land and thereby sent back her farmers, after assaulting them. Thereafter she filed two petitions on 22.05.2001 and 25.05.2001, before the Dy. Commissioner, Diphu in Karbi Anglong and on 25.05.2001, the respondent No.2 illegally entered into and took possession of the disputed land and started preparing the land for cultivation.

Thereafter, on 26.06.2021, the petitioner filed a case under Section 145 CrPC, before the learned Addl. Dy. Commissioner, Diphu in Karbi Anglong, upon which the M.R. Case No.15/2001, has been registered, and later on, the same was transferred to the Court of learned SDO (C), Bokajan and the same was re- numbered as M.R. Case No.26/2012. Thereafter, the petitioner filed another petition before the learned Magistrate on 05.07.2001 Page No.# 4/10

and upon the said petition, the learned Magistrate has attached the disputed land. Thereafter, on 26.02.2002, the respondent No.2 objected in passing the attachment order and thereafter, the learned Court has called for a report and accordingly, police submitted the report on 29.03.2002. The respondent No.2, thereafter, filed written statement on 28.11.2002, and after examination of the witnesses and hearing argument of learned Advocates for both sides, the learned Court below had dismissed the petition, declaring the possession in favour of the respondent No.2 and directed the Officer-in-Charge of Bokajan Police Station to hand over the possession of the disputed land in favour of the second party".

5. Being highly aggrieved, the petitioner preferred this revision petition on the grounds that:

(i) The learned Court below had misinterpreted the facts of the case and held that the respondent No.2 had been in possession of the disputed land since the day of bandhak/mortgage.

(ii) The learned Court below had failed to consider the fact that although land measuring 8 Bigha was given in mortgage, in favour of the respondent No.2, but subsequently the said mortgage was redeemed by selling 1 Bigha of land to respondent No.2 at a consideration of Rs.65,000/- and the respondent No.2 was in possession of only 1 Bigha of land and remaining 7 Bigha was under the possession of the petitioner.

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(iii) The learned Court below had failed to appreciate the fact that the respondent No.2 took the possession over the disputed land on 25.05.2001, which has been clearly stated in the petition filed on 26.08.2001, under Section 145 CrPC and the respondent No.2 took possession of the same forcefully.

(iv) The learned Court below had failed to consider the fact that the respondent No.2 tried to mislead the Court by giving contradictory statement and in his written statement, he stated that he purchased the land in the year 1998, but, subsequently he deposed that his mother purchased the land in the year 1999.

(v) The learned Court below had failed to consider the fact that the mother of respondent No.2, Smti Radhika Devi put her signature thumb impression in the statement recorded in the Court, whereas in the sale deed dated 20.02.1999, she put her signature.

(vi) The learned Court below had failed to consider the spirit of Section 145(4) of the CrPC and also to consider the fact that the respondent No.2 has forcefully and illegally taken possession over the disputed land, one month prior to filing of the M.R. Case No.26/2012 (old M.R. Case No.15/2001).

(vii) The learned Court below had failed to consider the fact that the statement of the prosecution witnesses indicates Page No.# 6/10

that the respondent No.2 has not been in possession over the disputed land since 1988 and therefore, it is contended to set aside the impugned order.

6. Mr. M.H. Laskar, learned counsel for the petitioner submits that the learned Court below has failed to appreciate the evidence, adduced by the petitioner in its proper perspective, that the statement of the respondent No.2 is contradictory in nature, that the sale deed is a forged one and not justified and that the property was attached not from the respondent No.2 but from the petitioner and that the two witnesses who were present at the time of execution of the sale deed is not examined by the learned Court below and therefore, it is contended to set aside the impugned order.

7. On the other hand, Mr. S. Mitra, learned counsel for the respondent No.2 submits that the impugned order is of temporary in nature and that the learned Court below has rightly arrived at the conclusion and the same requires no interference of this Court, as the possession of the disputed land by the respondent No.2, is admitted by the petitioner. Mr. Mitra further submits that the petitioner has approached this Court bypassing the Sessions Court, which has concurrent jurisdiction and in the case of Chander Bhan Singh vs. Central Bureau of Investigation and others, reported in 2019 3 SCC 193, the Hon'ble Supreme Court had left the question of law on the point of jurisdiction of the High Court and the Sessions Court open, and therefore, it is contended to dismiss the petition.

8. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on Page No.# 7/10

record and also perused the LCR and the impugned order dated 18.11.2015.

9. It appears that the learned Court below, after hearing both the parties, had arrived at the conclusion that the disputed land was given by the first party on bandhak (mortgage) in the year 1998 and the sale deed was prepared on 18.02.1999. The complaint was filed on 26.06.2001 and the attachment prayer was filed by the first party before the Court on 05.07.2001 and the first party in her statement admitted that since 1998 (the day of bandhak), the second party has been enjoying the disputed land. The first party also admitted that the land was attached from the possession of the second party, and therefore, having been satisfied, declared the possession of the disputed land in favour of the second party and directed the Officer-in- Charge, Bokajan Police Station to hand over the possession of the disputed land in favour of the respondent No.2.

10. It appears that the petitioner has filed the case on 28.06.2001 and the attachment prayer was made on 05.07.2001 and attachment was made on 20.11.2001. Though the petitioner has contended that on 25.05.2001, the respondent No.2 has illegally entered and took possession of the disputed land, yet the evidence on the record; specially of the petitioner herself admitted that it was being occupied by the respondent No.2. The learned Court below has, thus, rightly recorded the finding to the effect that the land was in the possession of the second party.

11. As per Section 145(4) CrPC, the Court is to ascertain which party is/are in possession of the disputed land, prior to two months of the Page No.# 8/10

date of filing of the complaint petition. In the case of Shanti Kumar Panda vs. Shakuntala Devi, reported in (2004) 1 SCC 438, while dealing with Section 145 & 146 of the Code of Criminal Procedure, 1973, the Hon'ble Supreme Court had held as under:

"Possession is nine points in law. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section (2) of Section 145 having arisen, causing a likelihood of a breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to sub- section (4) of Section 145, and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned.".

12. Thus, the law is well settled that the Court below while dealing Page No.# 9/10

with the cases under Section 145 & 146 of the Cr.P.C., is to see which party was in possession to the date of preliminary order or within two months before the said date, as referred to in proviso (2), Sub-Section 4 of Section 145 of the Cr.P.C. and to maintain the status quo as to possession until entitlement of possession was determined by a Court, having competent jurisdiction to entertain and adjudication of civil right, which an Executive Magistrate cannot.

13. Here in this case, the learned Court below has held that at the time of attachment, the land was under the possession of the respondent No.2 and the said fact is admitted by the petitioner also and as such, to the considered opinion of this Court, the impugned order passed by the learned Executive Magistrate, Bokajan in Karbi Anglong, in M.R. Case No.26/2012 (old M.R. Case No.15/2001), suffers from no illegality or impropriety, requiring any interference of this Court. Though the petitioner has stated in her petition that on 25.05.2001, the respondent No.2 had illegally possessed the disputed land, yet, it could not be established by adducing evidence.

14. I have considered the submission of learned Advocates of both sides, in the light of facts and circumstances on the record and I am unable to record concurrence with the submission, so advanced by the learned counsel for the petitioner. Not only the petitioner, but two of her witnesses also categorically stated that the disputed land was being enjoyed by the respondent No.2. Mr. Mitra, learned counsel for the respondent No.2 has rightly pointed this out during argument and I find substance in the submission.

15. Thus, it appears that the impugned judgment and order of the Page No.# 10/10

learned court below suffers from no illegality or infirmity requiring interference of this court. It is to be mentioned here that while exercising revisional jurisdiction, the High Court cannot substitute its view for that of the trial court in two views are possible. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Helper Girdharbhai vs. Saiyed Mohmad Mirsaheb Kadri and Ors., reported in AIR 1987 SC 1782.

16. In the result, I find no merit in this petition, and accordingly, the same stands dismissed. Stay, if any, granted earlier, stands vacated. Send back the LCR to the learned Court below with a copy of judgment and order of this Court.

JUDGE

Comparing Assistant