Badrilal Maali vs The State Of Madhya Pradesh
2022 Latest Caselaw 3067 MP

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         The High Court Of Madhya Pradesh
                          Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC 10344 of 2021 Badrilal Maali Vs.

State of MP and Anr.

============================== Shri Yash Sharma, counsel for petitioner.

Shri Nitin Goyal, Panel Lawyer for respondent No.1/ State. Shri Vivek Mishra, counsel for respondent No.2.

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Reserved on                          23/02/2022
Whether approved for reporting       ...../........
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                                   ORDE R
                            (Passed 04/03/2022)

Per Rajeev Kumar Shrivastava, J

Instant petition preferred under Section 482 of CrPC, is directed

against the order 08/01/2021 passed by Sessions Judge, Sheopur (MP)

in Criminal Revision No.29 of 2019.

(2) Necessary facts for adjudication of present petition in short are

that a complaint u/S. 145 of CrPC against Raju Mehtar (herein

respondent No.2) and Badrilal Maali (herein petitioner) has been filed

on the ground of breach of peace and possession pertaining to the land

in dispute bearing survey no.169 ad-measuring 8 bigha situated at

Village Pachipura, by Police Station Dehat, District Sheopur, wherein

standing crops on the land was attached and handed over the same to

Supurdigdar Jagdish vide a preliminary order, whose amount was in

possession of the Supurdigdar. Having recorded the evidence of the

parties in respect of Section 145 of CrPC, the petitioner was found in

possession over the disputed land and he was declared possession

holder of the disputed land and the amount of attached property was

ordered to be given to the petitioner. Respondent No.2, thereafter,

challenged the impugned order on the ground that a civil suit is

pending, pertaining to the disputed land in which, the possession of the

petitioner was not found proved and due to pendency of the civil suit,

the SDM was not empowered to pass an order u/S. 145 of CrPC. The

petitioner, thereafter, controverted the objection of the respondent No.2

pleading therein that he has been cultivating the said land prior to 1992

and at the time of institution of case in 2017, the petitioner himself had

sown the crops of wheat. Revenue Inspector had conducted an enquiry

in pursuance of order of SDM in which, the petitioner was found in

possession over the disputed land, which was two months prior to

filing of the complaint by police. The disputed question before the

Revisional Court was that as to whether the impugned order

14/08/2019 passed by SDM is liable to be set aside, being illegal. The

petitioner had filed an application before Tahsildar to obtain ownership

of the disputed land on 26/03/1991. The said application was decided

on 26/03/1992 in which, it was directed that the petitioner be declared

the owner of the disputed land and the name of the petitioner in place

of Babulal be recorded. An appeal preferred against the order of

Tahsildar before the Court of SDM, was dismissed vide order dated

31/08/2010. Being aggrieved, an appeal preferred before Additional

Commissioner, Chambal Division was allowed by dismissing the

orders of Tahsildar and SDM. The name of respondent No.2 was

ordered to be recorded in the revenue records. An application was filed

by petitioner to record his name in place of the respondent No.2 and

the same was dismissed vide order dated 11/09/2019 wherein, it was

found that the petitioner had filed a fabricated order of the Revenue

Board and the application of petitioner was accordingly rejected. The

petitioner had filed a Civil Suit No.89/2017 before the Court of Civil

Judge, Class-I, Sheopur along with an application under Order 39 Rule

1 & 2 of CPC. The said application was rejected and thereafter, the

petitioner filed a Miscellaneous Appeal No.20 of 2019 against the said

order, which is still pending. The proceedings u/S. 145 of CrPC had

been initiated on 27/03/2017 on the basis of the incident took place on

25/03/2017 and on 04/07/2017, the disputed property property was

attached as per provisions of Section 146 of CrPC and handed over the

same to Supurdigdar Jagdish. Thereafter, a civil suit was filed by the

petitioner on 18/07/2017, which reflects that the proceedings u/S. 145

of CrPC were initiated after filing of the civil suit.

(3) It is submitted by learned counsel for the petitioner that the

impugned order passed by Revisional Court is arbitrary and contrary to

law in the light of provisions of CrPC, because the order passed by the

SDM was based on thorough and exhaustive appreciation of all

documents and materials including the reports submitted by the

statutory authorities i.e. SHO and Revenue Inspector. The Court below

was not justified in exercise of its revisional jurisdiction to substitute

its own view on the ''question of fact'' given by SDM and should not

have interfered with the order of SDM. Once the findings of facts are

based upon appreciation of all evidence on record, the same should not

be interfered in exercise of revisional jurisdiction by the Court below.

Hence, it is prayed that the impugned order passed by Revisional Court

deserves to be set aside.

(4) Per contra, the petition is opposed by Counsel for the State as

well as respondent No.2. It is contended that the petitioner has filed

this petition by submitting wrong pleadings and has obtained stay

order from this Court on 24/03/2021. It is settled principle of law that

if the civil suit is pending regarding the disputed land, then the

proceeding u/S. 145 of CrPC is not maintainable. The petitioner has

not come to this Court with clean hands while bringing the facts to the

notice of this Court that a civil suit filed by him regarding the disputed

land is pending. In support of contention, the counsel for the

respondent No.2 has relied upon the judgment of Hon'ble Supreme

Court in the matter of Mahant Ram Saran Dass vs. Harish Mohan &

Another reported in (2001) 10 SCC 758, wherein it has been observed

by the Apex Court that any appropriate relief in the matter concerned

could be obtained through the civil court itself and the Magistrate has

no jurisdiction to entertain the petition under Section 145 of CrPC. It is

further contended that the civil court is competent to decide the

question of title as well as possession between the parties and the

orders of the Civil Court would be binding on the Magistrate. Once the

civil suit between the parties is pending for declaration of title or

possession, in that situation, a parallel proceeding under Section 145 of

CrPC cannot be initiated or allowed to be continued. The counsel for

the respondent No.2 has further relied upon the judgment of Hon'ble

Apex Court in the matter of Amresh Tiwari vs. Lalta Prasad Dubey

and Another, decided on 11th April 2000 in Criminal Appeal No.360

of 2000 (Arising out of S.L.P. (Criminal) No. 3858 of 1999) and

prayed that this petition being not maintainable, as the same is

misconceived and deserves dismissal.

(5) Heard the learned counsel for the parties at length and perused

the impugned order as well as the documents available on record.

(6) Where the disputed land is likely to cause breach of peace, the

following provisions of Section 145(1), (4) and (6) of CrPC should be

taken into consideration :-

''(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

************* (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received

by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).

******** (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub- section shall be served and published in the manner laid down in sub-

section (3). ''

(7) From bare reading of aforesaid provisions of Section 145 of

CrPC as well as on perusal of impugned order as well as the documents

available on record, it is clear that respondent No.2 and his brother

Babulal had filed an affidavit in respect of possession before sub-

ordinate Court pleading therein that Babulal had sown crops of wheat

in his land and after death of Babulal, his son respondent No.2 and his

wife Kamla Bai were looking after the said land. In rebuttal of the

aforesaid pleadings, the petitioner has not examined any witness and

reports submitted by SHO and Patwari have also not been proved. It

has been mentioned by SDM in its impugned order that the Tahsildar

has admitted the possession of father of respondent No.2 and on that

basis, SDM has passed the impugned order in favour of petitioner. The

evidence of the said matter is pertaining to the status of 1991-92

whereas proceedings u/S.146 of CrPC were initiated on 27/03/2017,

therefore, on the basis of evidence available on record, the SDM has

drawn a contrary finding of fact regarding possession of the petitioner

on 25/03/2017. The order of SDM is not liable to be upheld and the

possession of petitioner is also not found proved, therefore, the order

regarding amount of attached property to be given to the petitioner, is

contrary to the facts. The order of sub-ordinate Court is not liable to be

upheld. Therefore, the Revisional Court set aside the order 14/08/2019

passed by SDM and it was directed that the amount of attachment of

property shall be in possession of Supurdigdar Jagdish till final

decision of the civil suit and disbursement of the said amount shall be

made according to the final outcome of the civil suit.

(8) For the forgoing reasons, I do not find any substance in the

present petition and the same being devoid of merits and is hereby

dismissed. The stay order dated 24/03/2021 passed by the Coordinate

Bench of this Court stands vacated.

(9) Let a copy of this order be sent to the Court below concerned

for information and proceed further as per law.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.03.05 10:55:37 +05'30'