Village And P.O. Sahoura vs Mauza Chari
2021 Latest Caselaw 4011 HP

                            1




    IN THE HIGH COURT OF HIMACHAL PRADESH
                AT SHIMLA




                                                  .
              ON THE 19TH DAY OF AUGUST, 2021





                       BEFORE





          HON'BLE MR. JUSTICE ANOOP CHITKARA

          CRIMINAL MISC. PETITON (MAIN) U/S 482 CRPC





          No.136 OF 2018



    BETWEEN:-


    SUMANGLA DEVI,
    WIFE OF SHRI MEHAR SINGH,
    PRESENTLY RESIDENT IN THE


    HOUSE OF HER FATHER
    SHRI AMIN CHAND, SON OF
    SHRI MADHRU RAM, R/O




    VILLAGE AND P.O. SAHOURA,
    TEHSIL & DISTRICT KANGRA,





    HIMACHAL PRADESH

                                  .... PETITIONER





    (BY SHRI AJAY SHARMA, SENIOR ADVOCATE WITH
    SHRI AMIT JAMWAL, ADVOCATE)


    AND




                                 ::: Downloaded on - 31/01/2022 22:54:29 :::CIS
                                    2




    MEHAR SINGH, SON OF
    SHRI NABHO RAM, R/O
    VILLAGE AND P.O. DHANOTU,




                                                            .

    MAUZA CHARI, TEHSIL
    SHAHPUR, DISTRICT
    KANGRA, H.P.





                                           .... RESPONDENT.





    (BY: SHRI R.K. SHARMA, SENIOR ADVOCATE WITH
    MR. ARUN KUMAR, ADVOCATE)


               This petition coming on for orders this day, the

    Court passed the following:



                          ORDER

Cr. Revision No. 2-D/X/15/2011, decided on 1.3.2018 by

Sessions Judge, Kangra at Dharamshala. Cr. Petition No. 200-IV/2006, decided on 18.5.2011 by Chief

Judicial Magistrate, Kangra at Dharamshala, District Kangra, H.P.

Challenging the dismissal of petition under

Sections 125 and 127 Cr.PC, by Judicial Magistrate as well as

by appellate Court, the lady has come up before this Court.

2. The facts of the case have been mentioned in detail by learned trial Court as follows:-

" ... ... Briefly, in a petition under Section

.

125 of Cr.PC. with case No.62-IV/1991, this

Court on 26.7.1991, granted monthly maintenance of Rs.200/- to the applicant. The

applicant thereafter by moving an application as case No.29-IV/1995 sought alternation of the said order to the extent of Rs.500/-. During the said proceedings, the respondent

compromised the matter by offering the land comprised in Khata No.41 min, Khautani No.155, Khasra Nos.482 and 508 measuring 0-45-01 hectares as per Jamabandi for the year

1990-91 in favour of the applicant in lieu of

maintenance and a room for residence of the applicant. In view thereof the applicant withdrew the said application. But when the applicant wanted to cultivate the said land

given by the respondent, the respondent did not allow her to do so, on one pretext or the other. The applicant as such was forced to initiate

proceedings under Section 10 of the Contempt of Courts Act. During the said proceedings in

order to settle the matter Shri S.C. Thakur, Advocate was appointed as Local Commissioner to visit the spot and handover

the actual and physical possession of the land in possession of the respondent in favour of the applicant. He as such delivered the possession of an area about 2½ -3 Kanals of land in favour of the applicant. The applicant when started cultivating the same, the respondent again did not allow her to do so on the ground that she be allowed to take possession in next year and that she should show in black and white as to which

part of the land has been delivered in her favour. Thus, the respondent tried to play hide and seek by taking advantage of non- preparation of a Tatima of the land delivered

.

by the Local Commissioner. These facts and

circumstances again forced the applicant to file an application under Section 10 of the

Contempt of Courts Act. The said application was resisted by the respondent on the ground that the Local Commissioner's report is vague. The respondent took the stand that he had not

agreed to handover the above land, but some other land in favour of the applicant. The respondent as such since 14.1.1997 when agreed to give land in lieu of maintenance to

the applicant neither allowed her to cultivate

the same nor paid any maintenance. Even if the said land is allowed to be given to the applicant, even then the same is not sufficient for her maintenance as the cost of cultivation

has gone very high and the applicant cannot maintain her liveliness from the produce of the said land. Further the prices of all the

commodities have gone very high. The respondent is having land as well as industry

and there-from is earning about Rs.10,000/- per month. He as such can pay maintenance of Rs.2000/- per month to the applicant.

2. The respondent filed reply wherein took preliminary objection of maintainability and on merits, averred that the possession of the land given in favour of the applicant was not of any specific numbers and area as the respondent was not owning and possessing land exclusively. The said land is joint with his brothers. The respondent possessed some land exclusively and the possession thereof was

given in favour of the applicant through the Court. The land measuring about 1½ Kanals comprised in Khata No.102 minh, Khatauni No.155 min, Khasra No.482, as per Jamabandi

.

for the year 2000-01 situated in Mohal

Dhanotu, Mauza Charri, Tehsil Shahpur, District Kangra (HP) and about 1 Kanal

comprised in Khata No.40 min, Khatauni No.55 min, Khasra No.8 as per Jamabandi for the year 2001-02 situated in Mohal Haler, Mauza Charri, Tehsil Shahpur, District Kangra

(HP) was given in favour of the applicant and possession thereof was delivered on 22.4.2001 by the Local Commissioner. It is denied that the respondent ever caused any obstruction in

the cultivation of the said land. It was in view

of the said false allegations, her complaint came to be dismissed on 20.4.2007. The land in possession of the applicant is sufficient for the maintenance of the applicant. The respondent

at present is not possessing any land and as such is unable to maintain himself and his children. He is having an income of about

R.2000/- per month from all sources. It is denied that he is earning about Rs.10,000/- per

month as alleged. With same prayed for dismissal of the application."

3. Learned Chief Judicial Magistrate, after considering the proceedings in detail and after hearing the parties, gave a detailed judgment and in Paragraph-11 held that respondent had handed over the possession of about 2 ½ -3 Kanals of land in favour of strained wife. Learned Court also observed that the applicant could not establish

that the husband had caused any obstruction in cultivation or enjoyment of the said land. In fact, in Paragraph-11, learned Chief Judicial Magistrate went on observing that

.

the said piece of land was still in possession of the applicant and she is enjoying the usufruct thereof.

Learned trial Court also held that there is no evidence to prove that the respondent was having monthly income of Rs.10,000/-.

4. Consequently, for these reasons learned trial Court dismissed the application.

5. Having aggrieved, the applicant-wife filed a

criminal revision petition before learned Sessions Court, Kangra at Dharamshala. Vide judgment dated, 1.3.2018, learned Sessions Judge, Kangra at Dharamshala, did not

find merit in the petition and dismissed the same.

6. In Paragraph-13, learned appellate Court

observed that 2½ Kanal land and residential

accommodation of one room is already given to the wife and there is no evidence that the respondent-husband has

monthly income of Rs.10,000/-. Learned appellate Court also observed that the husband was suffering from heart ailment and needs money for his medical treatment.

7. Challenging the dismissal of the appeal, the lady has come up before this Court. Mr. Ajay Sharma, learned Senior Advocate argued that as per his instructing

counsel, even as on date, the husband is not letting the wife cultivate the said land.

8. To the contrary, Mr. R.K. Sharma, learned

.

Senior Advocate has stated through his instructing counsel, Mr. Arun Kumar that there is no such obstruction

and in case the petitioner wants to cultivate the land, the respondent-husband will not cause any kind of obstruction whatsoever.

9. An analysis of the petition makes a reading that the petitioner, Smt. Sumangla Devi is around 62-63 years

of age. The husband is also of same age group and rather

suffering from heart ailment. Given the age of the lady, it would be practically impossible for her to cultivate the land on her own.

10. Thus, taking into account the submissions of the parties received through the instructing counsel, this

Court modifies the previous order to the extent that the

petitioner shall be allowed to cultivate the land which was given to her by her husband, Mehar Singh either by hiring

labour or even through contract farming on crop to crop basis. It is clarified that such tiller shall not accrue any right, title or interest over the land which would be given to said person by the wife except for the purpose of sowing, maintaining and harvesting the crop. It is also clarified that in case the respondent-husband comes up

with a proposal to offer monthly maintenance in lieu of the land, then it shall be open for him to file an application under Section 127 Cr.PC before the concerned Court.

.

These directions have been passed in the spirit of law and so that substantial justice is done to the parties who are

around 63-65 years of age.

11. Given above, impugned judgment dated 1.3.2018, passed by learned Sessions Judge, Kangra at

Dharamshala, is modified to the extent mentioned above and the petition is closed in the aforesaid terms.

Pending application(s), if any, are also closed.

Anoop Chitkara, Judge.

August 19 , 2021 (ks).