Madhya Pradesh High Court
Chhoteram Malviya vs The State Of Madhya Pradesh on 19 December, 2023
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 19 th OF DECEMBER, 2023
CRIMINAL REVISION No. 2342 of 2017
BETWEEN:-
CHHOTERAM MALVIYA S/O KHEMCHAND MALVIYA
R/O VILLAGE BISHANKHEDI, NEAR RADHKRISHNA
MANDIR P.S. RAITBAD DISTT. BHOPAL (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI PUSHPENDRA DUBEY - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR. PS
RATIBAD DISTT. BHOPAL (MADHYA PRADESH)
2. HEERALAL S/O KHEMCHAND MALVIYA R/O
VILLAGE BISHANKHEDI, NEAR RADHAKRISHNA
MANDIR P.S. RATIBAD DISTT. BHOPAL (MADHYA
PRADESH)
3. AMIT S/O KHEMCHAND MALVIYA R/O VILLAGE
BISHANKHEDI, NEAR RADHAKRISHNA MANDIR
P.S. RATIBAD DISTT. BHOPAL (MADHYA
PRADESH)
4. ASHOK S/O KHEMCHAND MALVIYA R/O VILLAGE
BISHANKHEDI, NEAR RADHAKRISHNA MANDIR
P.S. RATIBAD DISTT. BHOPAL (MADHYA
PRADESH)
5. JAGDISH S/O KHEMCHAND MALVIYA R/O
VILLAGE BISHANKHEDI, NEAR RADHAKRISHNA
MANDIR P.S. RATIBAD DISTT. BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SOURABH KUMAR SONI - ADVOCATE FOR RESPONDENT NOS. 2
TO 5.)
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 21-Dec-23
10:18:12 AM
2
This revision coming on for admission this day, th e court passed the
following:
ORDER
With the consent of parties, heard finally.
This revision petition is directed against order dated 12/07/2017 passed
by 13th Additional Sessions Judge, Bhopal in Criminal Revision No. 287/2017,
whereby the order dated 05/05/2017 passed by SDM, T.T. Nagar, Habibganj,
Bhopal in case No. 1/2016 under Section 145 of Cr.P.C. has been set aside.
The Sub Divisional Magistrate has directed the present revisionists to deliver the
possession of disputed land to the revisionist (applicant).
2. Learned counsel for applicant submits that the court below has
committed gross error of law by misinterpretation of provision of 145 of
Cr.P.C. Section 146 of Cr.P.C. says that Magistrate may attach the subject of
dispute until a competent court has determined the rights of the party thereto
with regard to the person entitled to the possession thereof. The non-applicants
were directed by the trial Court to hand over the possession to the applicant.
The order passed by the court below is wholly illegal because SDM has found
prima facie possession of applicant prior to 60 days as per Section 145 of
Cr.P.C. twice, even though the order was passed in favour of respondents and
the report of Patwari and Tahsildar, who found the possession of applicant
over the disputed property was not considered by revisional court wile
reversing the order of SDM regarding possession of the party. The court below
ought to have considered the fact that the applicant has filed the suit for specific
performance of contract and decree was passed in favour of applicant and
therefore, no occasion to pass the order of protection under Section 145 of
Cr.P.C. arise. Learned court below ought to have appreciated and considered
the fact that the respondents are illegally trying to dispossess the applicant from
lawful possession of his ancestral property as revenue authority has recorded
applicants name in property. Revisional court has failed to see that within two
months next before the date on which the report was received by the
Magistrate, the applicant was in possession of suit property, therefore,
following the mandatory provision of the Act the Magistrate has passed the
order in favour of applicant. The presumption is in favour of applicant that they
are in possession of suit land. Under these circumstances, learned counsel for
applicant prays for setting aside of the impugned order. In support of his
contentions, learned counsel for applicant has placed reliance on the decisions
of Hon'ble apex Court in the cases of Mathura @ Ors. Vs. Ramkripal &
Ors., 2020 0 Supreme (MP) 128 and in the case of Brijendra Kumar Jha
Vs. Amar Nath Singh & Ors., 2013 0 Supreme(MP) 1498.
3. Per contra, learned counsel for respondents has opposed the prayer
made by learned counsel for applicant and prays for dismissal of this revision
petition.
4. Heard arguments advanced by learned counsel of both the parties and
perused record as well impugned order.
5. It is an admitted fact that the applicant/revisionist and main non-
revisionists/respondents are the sons of Khemchand, hence, they are brothers
and there is a dispute of land admeasuring 1692 square feet, which is a part of
Survey No. 189 measuring area 12,000 Sq. Ft. It is also not in dispute that
Khemchanda is the owner of entire land and is alive at present. The will alleged
to be executed by him has also been cancelled by him. The boundaries of the
disputed land have not been disclosed by the applicant nor any site map has
been filed or given by him. Revenue authorities have also not prepared any such
map. Hence, the identity of disputed land is not established.
6. The applicant has not produced any reliable evidence regarding his
possession over the disputed land and his dispossession. No specific date of
coming into possession or his dispossession has been given by the applicant in
his evidence. Mere reports of revenue authorities are not sufficient in this
regard.
7. Under these circumstances, the order passed by the lower SDM court
cannot be termed as just and proper. It is also appropriate to mention here that
once proceedings under Section 145 of Cr.P.C. have been initiated on the
report submitted by the Additional Tahsildar, T.T. Nagar. But no preliminary
order under Section 145(1) of Cr.P.C. has been passed by the learned
Magistrate Court stating his satisfaction over the likelihood of breach of peace
and tranquility. This fact goes to the roots of the case and vitiates the entire
proceedings. Thus, the learned Magistrate has ignored many germane legal
points. So far as the decisions relied by learned counsel for applicant are
concerned they are not applicable to the facts and circumstances of present
case as each order/decision/judgment has been passed on the basis of facts and
circumstances of that particular case.
8. On the basis of aforesaid discussions, this court is of the considered
view that the court below has not committed any error of law while passing the
impugned order warranting any interference by this Court. Accordingly, being
devoid of any merits, present revision petition deserves to be and is hereby
dismissed.
9. Let a copy of this order alongwith record be sent back to the courts
concerned for information and necessary compliance.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
skt
