Rajasthan High Court
Banna And Ors vs State And Anor on 3 January, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023:RJ-JP:41372]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 1040/2002
1. Banna son of Jujha
2. Shaitan son of Jujha
3. Hanuman son of Jujha
4. Gopi Daughter of Jujha
5. Gulab wife of Jujha
6. Kesar wife of Onkar
7. Laxma Daughter of Onkar
All Resident of Sitarampura, Tehsil Malpura, District Tonk,
Rajasthan
----Petitioners
Versus
1. State of Rajasthan through Public Prosecutor
2. Harjinath son of Bhagirath (Since Died through his legal heirs):
2/1. Durganath S/o Harjinath, Resident of Sitarampura, Tehsil
Malpura, District Tonk, Rajasthan
2/2. Bharatnath S/o Harjinath, Resident of Sitarampura, Tehsil
Malpura, District Tonk, Rajasthan
2/3. Jamana Devi Yogi D/o Harjinath, W/o Shyoji Yogi, Resident of
Jhirana Tonk, Rajasthan
2/4. Suvanath D/o Harjinath, W/o Durganath, R/o Nimera, Peeplu,
Tonk, Rajasthan
2/5. Durga Devi Nath D/o Harjinath, W/o Ratan Lal Nath, R/o Bala
ji ka Mohalla, Jhirana, Tonk, Rajasthan
3. Bhuranath son of Harjinath, Resident of Sitarampura, Tehsil
Malpura, District Tonk, Rajasthan
----Respondents
For Petitioner(s) : Mr. Biri Singh, Sr. Adv. assisted by
Mr. Jaswant Singh
For Respondent(s) : Mr. Chandragupt Chopra, PP
Mr. Vijay Choudhary
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
RESERVED ON : 06/12/2023
PRONOUNCED ON : January 3rd , 2024
BY THE COURT:
1. This Criminal Revision Petition under Section 397 read with
Section 401 Cr.P.C. has arisen out of a criminal complaint moved
by the SHO Lamba Hari Singh, Tonk on 11.07.1989 under Section
145 Cr.P.C. before the Court of Additional Collector and Magistrate,
Malpura, District Tonk (hereinafter referred to as "ACM"). It was
pleaded in the present complaint, that a dispute has erupted
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between party No.1 and party No.2 in respect of claiming
possession over agricultural lands in question situated at Village
Sitarampura, Kantoli, Tehsil Malpura District Tonk, due to which
there is possibility of breach of peace and tranquility. On receiving
the complaint, after prima facie satisfaction about the likelihood to
cause a breach of peace exists, due to dispute between two
parties in respect of claiming rival and respective possession over
lands in question, learned ACM passed preliminary order dated
11.07.1989 under Section 146(1) Cr.P.C., appointing Naib
Tehsildar, Malpura as receiver to take lands in question in his
possession. Both parties submitted their respective claims and
reply, to establish their cultivation and possession over lands in
question on 11.07.1989 and prior thereto. Learned ACM also
allowed both parties to produce their respective evidence oral and
documentary, in support of their respective claims to prove
possession. Both parties adduced their evidence and thereafter
having heard both parties and after appreciation of evidence and
material came on record, learned ACM passed the final judgment
dated 17.10.1997 whereby and whereunder possession of lands in
question as on 11.07.1989, the date on which receiver Naib
Tehsildar, Malpura took lands in question in his possession and two
months prior thereto was declared to be of party No.1 (Jujha
Meena, Onkar Meena etc.-present petitioners) and by the same
judgment simultaneously the party No.2 (Harjinath Jogi and
Bhuranath Jogi- non petitioners herein) was restrained not to
hinder/obstruct in peaceful use and possession of lands in
question by party No.1.
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2. It is worthy to take note that after passing the final decision
dated 17.10.1997, by the Court of ACM, in compliance thereof,
receiver handed over the physical possession of lands in question
to party No.1-petitioners herein on 22.10.1997. This factual
aspect of delivering the physical possession of land in question by
the Court receiver to the party No.1-petitioners has not been
disputed by non-petitioners. It is an undisputed fact that since
22.10.1997, party No.1-petitioners has been in continuous
possession of lands in question.
3. It appears that the judgment dated 17.10.1997, though
implemented, yet was put to challenge by the party No.2- non-
petitioners by way of filing criminal revision petition No.37/1997
before the Additional Sessions Judge, Malpura. The Revisional
Court allowed the revision petition vide order dated 20.02.1999
and after quashing the judgment dated 17.10.1997, remanded the
matter to the Court of ACM, Malpura to decide the same afresh.
Against the order of Revisional Court dated 20.02.1999, party
No.1-petitioners preferred criminal revision petition before the
High Court, invoking powers under Section 397 read with Section
401 Cr.P.C. The High Court decided the revision petition vide order
dated 28.07.1999 with observations that since matter has been
remanded to the Court of ACM, therefore, the Court of ACM shall
consider and decide the matter afresh, without being influenced
by any findings/observations recorded by the Additional Sessions
Judge, Malpura in its order dated 20.02.1999 and thus, the order
of remand was upheld. Thereafter, the matter has been decided
afresh by the ACM on merits vide judgment dated 03.05.2000.
[2023:RJ-JP:41372] (4 of 23) [CRLR-1040/2002]
This time also, party No.1-petitioners succeeded in establishing
their possession over lands in question and the issue of possession
has been decided in their favour, with observations that
possession had already been handed over to party No.1-
petitioners by the Court of receiver way back on 22.10.1997. The
party No.2- non-petitioners challenged the judgment dated
03.05.2000 by filing the criminal revision petition No.21/2000
before the Additional Sessions Judge, Malpura. Learned Additional
Sessions Judge, vide order dated 18.10.2002 allowed the revision
petition and set aside the judgment dated 03.05.2000. The final
order of Revisional Court dated 18.10.2002, is under challenge in
the instant criminal revision petition at the instance of party No.1-
petitioners, invoking jurisdiction of the High Court under Section
397 read with Section 401 Cr.P.C.
4. In the present criminal revision petition, the operation of
impugned order dated 18.10.2002 passed by the Court of
Additional Sessions Judge, Malpura was stayed, more particularly,
with regard to para 15 of the impugned order and the interim stay
order is in force since then, thereafter, the revision petition was
admitted for hearing vide order dated 17.04.2009. Thus, actual
possession of disputed lands is undisputedly stated to be with
petitioners-party No.1. Since 22.10.1997 onwards. In such
backdrop of facts about previous proceedings, commenced on the
complaint filed under Section 145 Cr.P.C., this revision has come
up before this Court for final hearing.
5. Heard counsel for both parties at length and perused the
material placed on record.
[2023:RJ-JP:41372] (5 of 23) [CRLR-1040/2002]
6. The factual matrix of the case, in nutshell, as culled out from
the record and necessary to consider the issue in the present
petition is that in the year 1965, a revenue suit was filed by party
No.2- non-petitioners where an ex parte decree dated 31.07.1965
came to be passed by the Court of Sub Divisional Officer, Malpura
and in compliance thereof, mutation No.28 and 336 was
sanctioned in the revenue record in respect of disputed lands in
favour of non-petitioners Harjinath Jogi and others.
6.1 According to petitioners, they were in jail at that point of
time and since agricultural lands in question were indeed belongs
to them, who are members of Scheduled Tribes (ST) category
being Meena caste, therefore, lands were wrongly mutated in the
name of non ST caste persons in utter disregard to Section 42 of
the Rajasthan Tenancy Act on the basis of alleged illegal decree,
therefore, after release of petitioners from jail, an application was
moved by them before the District Collector, Tonk, on which a
reference under Section 82 of the Land Revenue Act, 1956 was
sent to the Board of Revenue, Ajmer. The Board of Revenue after
hearing both parties on reference petition, vide judgment dated
19.06.1987, allowed the reference and held that agricultural lands
of ST caste persons were illegally transfer in the name of non ST
persons which is clearly barred under Section 42(1) of the
Rajasthan Tenancy Act; Finally, the mutation sanction in favour
non-petitioners No.28 & 336 were ordered to be canceled and
lands were restored in the revenue record in the name of
petitioners. The judgment of Board of Revenue dated 19.06.1987
was put to challenge by non-petitioners by filing D.B. Civil Writ
[2023:RJ-JP:41372] (6 of 23) [CRLR-1040/2002]
Petition No.1827/1987 before the Division Bench of Rajasthan
High Court but writ petition came to be dismissed on merits vide
order dated 12.08.1987. Thereafter, it has been stated that lands
have been mutated in favour of petitioners in the revenue record
on 02.09.1987 as also petitioners got the possession and started
cultivation.
6.2 According to non-petitioners, the decree dated 31.07.1965
was passed by the SDO Malpura on the basis of compromise and
in pursuance thereof, lands were mutated in the revenue record in
the name of Harjinath Jogi etc. They were in cultivatory
possession prior thereto. However, when the mutation was
canceled in pursuance to the judgment on reference by the Board
of Revenue dated 19.06.1987, non-petitioners preferred appeal
and in the year 1988, their mutation was restored. Thereafter, on
challenging the mutation of non-petitioners by petitioners Onkar
Meena and Jujha Meena, Tehsildar Malpura vide judgment dated
15.03.1990 allowed appeal and mutation was directed to be
recorded in the name of petitioners. Thereagainst, non-petitioners
filed appeal which is pending. However, it has transpired before
this Court that during course of pendency of present petition, the
appeal filed by non-petitioners has been dismissed by the
Additional Divisional Commissioner, Ajmer vide judgment dated
11.10.2007 and the mutation entries No.1339 and 1340 passed in
favour of petitioners in compliance of judgment dated 15.03.1990,
has been affirmed.
6.3 According to non-petitioners, decree of SDO dated
31.07.1965 has not been set aside and unless non-petitioners are
[2023:RJ-JP:41372] (7 of 23) [CRLR-1040/2002]
not dispossessed from the disputed lands in question in
accordance with law, mere forcibly possession taken by petitioners
in the guise of decision on reference in their favour, is of no worth
in the eye of law and same cannot be affirmed under proceedings
of Section 145 Cr.P.C. It has been submitted that indeed prior to
11.07.1989, possession of disputed lands was with non-
petitioners, and when petitioners obstructed them from
cultivation, FIR No.43/1989 was lodged by Harjinath at Police
Station Lamba Hari Singh and on investigation, police found that
there is a dispute between two parties in respect of cultivation and
possession of agricultural land which is likely to cause breach of
peace, therefore, the SHO submitted the dispute for adjudication
by way of filing complaint under Section 145 Cr.P.C. before the
Court of ACM, Malpura, District Tonk. On filing of complaint,
proceedings commenced thereupon, regarding which the reference
have already been made hereinabove and proceedings culminated
into final judgment dated 03.05.2000 of ACM, which has been
quashed and set aside by the Additional Sessions Judge, Malpura
vide order dated 18.10.2002, impugned herein.
7. Learned Senior Counsel appearing on behalf of petitioners,
party No.1 would submit that lands in question was in fact
belonging to persons of ST category, Meena caste, and same was
illegally mutated in the name of non ST category persons, in
derogation to the statutory bar envisaged under Section 42 of the
Rajasthan Tenancy Act, therefore, such an illegality has been
rectified by the Board of Revenue, on receiving the reference
under Section 82 of the Land Revenue Act, that too after hearing
[2023:RJ-JP:41372] (8 of 23) [CRLR-1040/2002]
both parties vide judgment dated 19.06.1987. The judgment
passed in reference has been affirmed by the Division Bench of
High Court vide order dated 12.08.1987 and thereafter the
mutation in the revenue record has been restored in the name of
petitioners. Petitioners are in continuous cultivatory possession of
lands in question since thereafter, and when the receiver- Naib
Tehsildar, Malpura took the possession on 11.07.1989, lands were
in cultivatory possession of petitioners as well as recorded in their
Khatedari in the revenue record. It has been argued that even in
the complaint made by non-petitioners, they stated that
petitioners have unauthorizedly entered into possession and have
deprived non-petitioners from cultivating fields. It has been
submitted that the crop of Maize and Sorghum were sowed by
petitioners and in support, the Khasra Giradawari in Samvat 2044-
45 was produced before the authority. It has been submitted at
the time of attachment of agricultural land and taking possession
by the receiver, crop of Sorghum, Sesame and Maize of petitioners
were available; thus, at the time of taking possession by the
receiver on 11.07.1989 as also prior thereto, lands have been in
cultivatory possession of petitioners.
8. It has been submitted that learned ACM, after appreciating
the evidence on record, rightly declared the possession of
petitioners vide judgment dated 17.10.1997 and again after
remand, judgment dated 03.05.2000 has been passed, affirming
and declaring the possession of petitioners over the disputed
lands. Learned Additional Sessions Judge, Malpura as Revisional
Court has acted arbitrarily and beyond its jurisdiction while
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passing the impugned order dated 18.10.2002. A well reasoned
judgment dated 03.05.2000 has illegally been set aside. It has
been pointed out that the Court receiver had already handed over
the possession of disputed lands to petitioners way back on
22.10.1987, as has been affirmed and observed by the ACM in the
judgment dated 03.05.2000. He submits that it stands established
from the record that lands have been mutated in the name of
petitioners after the judgment of Board of Revenue in reference
petition and have been in cultivatory possession of petitioners,
hence, after considering all factual and legal aspect, the issue of
possession has rightly been adjudicated by the Magistrate in the
judgment dated 03.05.2000. The judgment dated 03.05.2000 is
well within parameters of law, therefore, same deserves to be
upheld and the impugned order dated 18.10.2002 passed by the
Additional Sessions Judge, Malpura be quashed and set aside.
9. Per contra, learned counsel appearing on behalf of non-
petitioners, although, is not in a position to question the judgment
of Board of Revenue dated 19.06.1987 passed in reference
petition, which has been affirmed by the High Court by dismissing
their writ petition vide order dated 12.08.1987 as also does not
dispute entries of petitioners in the revenue record for lands in
question, however, has vehemently argued that at no point of
time, possession of agricultural lands in question was entrusted to
petitioners lawfully. Learned Senior Counsel referred the order of
the High Court dated 12.08.1987 passed in DB Civil Writ Petition
No.1823/1987 Harjinath Jogi Vs. State of Rajasthan to point out
that it was observed therein "Whether or not petitioners can be
[2023:RJ-JP:41372] (10 of 23) [CRLR-1040/2002]
dispossessed or whether the petitioners preferred title by his
adverse possession, is not for the Court to see and this question
only will arise as and when an attempt is made by the Jujha and
Onkar to dispossess the petitioner in appropriate proceedings
before the appropriate forum." It has been sought to submit by
the counsel for non-petitioners that by virtue of such observation
in the order dated 12.08.1987, it stands established that
possession of lands were lying with non-petitioners, though, the
mutation had entered into names of petitioners in compliance of
the judgment of Board of Revenue in reference petition. However,
he submits that non-petitioners have never been dispossessed in
accordance with law from the disputed land, therefore, petitioners
have wrongly been declared in possession and to retain the
possession by the Executive Magistrate in the judgment dated
03.05.2000.
10. Learned counsel for non-petitioners, during course of
argument has not disputed that, though, after the first judgment
dated 17.10.1997 wherein the possession of disputed land was
declared to that of petitioners, the possession has been handed
over to petitioner by the Court receiver on 22.10.1997, which too
was affirmed by the Court of ACM in its judgment dated
03.05.2000 and the order to deliver/handover the possession to
petitioners, by the Court receiver is not under challenge even, but
his bone of contention is that the basic judgment dated
17.10.1997 was challenged and same had been set aside, hence,
the order of handing over possession dated 22.10.1997 in
compliance thereof looses any legal support. He submits that in
[2023:RJ-JP:41372] (11 of 23) [CRLR-1040/2002]
the subsequent judgment dated 03.05.2000, learned ACM has
committed jurisdictional error in declaring the possession of lands
in question with petitioners, which is illegal and unauthorized,
thus, the Revisional Court has rightly quashed and set aside the
judgment dated 03.05.2000. Learned counsel for non-petitioners
has supported the impugned order dated 18.10.2002 and prayed
to dismiss the instant revision petition.
11. At the outset, before embarking upon facts of present case,
in order to adjudicate the correctness, legality or propriety of the
impugned order dated 18.10.2002, it would be appropriate first to
advert attention on the scope of Section 145 Cr.P.C. wherein the
present dispute between parties was submitted for adjudication. It
is well settled proposition of law that Section 145 Cr.P.C. deals
with, fundamentally in respect of factum of possession of party
that too on the particular day and two months prior thereto and
does not take within its partake dispute of title between parties in
respect of the disputed property. In the opinion of this Court, the
enquiry as envisaged and permissible within the scope of Section
145 Cr.P.C., is limited to the question as to which party was in
actual possession on the date of passing of the preliminary order,
to take possession of the disputed property by the receiver,
irrespective of Khatedari/ownership rights of properties. It is
apropos to refer the relevant statutory provisions, enshrined under
Section 145 Cr.P.C. as under:
Section 145- Procedure where dispute concerning
land or water is likely to cause breach of peace.-
(1) ..................
(2) .................
[2023:RJ-JP:41372] (12 of 23) [CRLR-1040/2002]
(3) .................
(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).
(5) Nothing in this section' shall preclude any party
so required to attend, or any other person interested,
from showing that no such dispute as aforesaid exists
or has existed; and in such case the Magistrate shall
cancel his said order, and all further proceedings
thereon shall be stayed, but, subject to such
cancellation, the order of the Magistrate under
subsection (1) shall be final.
(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) ..................
(8) .................
(9) .................
(10) ..............."
12. It would also be relevant to point out that the final order
passed by the Executive Magistrate (ACM) within the scope of
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Section 145 Cr.P.C. does not decide the rights of parties finally but
the order is subject to the decision about the rights of parties
including adjudication of the issue of possession by the Civil Court.
Thus, defeated party in such proceedings, who looses or is
deprived to retain possession of disputed property, has a legal
remedy to get back the possession after adjudication of legal
rights of the parties in respect of disputed property before the
Civil Court. Even it is open to either of the party, to file a regular
civil suit for declaration and prove a better right to possession
over disputed property. Therefore, legal proposition is well settled
that it is open to either of parties to invoke the jurisdiction of Civil
Court for final adjudication of their rights even after final decision
of proceedings under Section 145 Cr.P.C., and the Civil Court
would decide the matter independently as per the material came
on record in accordance with law and findings recorded by the
Executive Magistrate, recorded in deciding the complaint under
Section 145 Cr.P.C. would not deter rights of any of the parties. In
support of such proposition of law, the judgment the Hon'ble
Supreme Court delivered in case of Bhinka Vs. Charan Singh
[AIR 1959 SC 960], more particularly para 16 may be re-
produced hereunder:
"16. This leads us to the consideration of the legal
effect of the order made by the Magistrate under S.
145 of the Code of Criminal Procedure. Under S.
145(6) of the Code, a Magistrate is authorized to
issue an order declaring a party to be entitled to
possession of a land until evicted therefrom in due
course of law. The Magistrate does not purport to
decide a party's title or right to possession of the land
but expressly reserves that question to be decided in
due course of law. The foundation of his jurisdiction is
on apprehension of the breach of the peace, and,
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with that object, he makes a temporary order
irrespective of the rights of the parties, which will
have to be agitated and disposed of in the manner
provided by law. The life of the said order is
conterminous with the passing of a decree by a Civil
Court and the moment a Civil Court makes an order
of eviction, it displaces the order of the Criminal
Court. The Privy Council in Dinomoni Chowdhrani v.
Brojo Mohini Chowdhrani (1) tersely states the effect of
orders under S. 145 of the Code of Criminal
Procedure thus:
"These orders are merely police orders made to
prevent breaches of the peace. They decide no
question of title..............."
We, therefore, hold that a provisional order of a
Magistrate in regard to possession irrespective of the
rights of the parties cannot enable a person to resist
the suit under S. 180 of the Act."
Similar proposition was expounded by the Hon'ble Supreme
Court in case of Jhummamal Vs. State of M.P. [(1988) 4 SCC
452], wherein it was held as under:
"8..............An order made under Section 145
CrPC deals only with the factum of possession of the
party as on a particular day. It confers no title to
remain in possession of the disputed property. The
order is subject to decision of the civil court. The
unsuccessful party therefore must get relief only in
the civil court. He may move the civil court with
properly constituted suit. He may file a suit for
declaration and prove a better right to possession.
The civil court has jurisdiction to give a finding
different from that which the Magistrate has
reached."
In case of R.H. Bhutani Vs. Mani J. Desia [(1968) AIR
SC 1444], the Hon'ble Supreme Court has held as under:-
"8. The object of Section 145, no doubt, is to
prevent breach of peace and for that end to provide a
speedy remedy by bringing the parties before the court
and ascertaining who of them was in actual possession
and to maintain status quo until their rights are
determined a competent court. The section requires
that the Magistrate must be satisfied before initiating
proceedings that a dispute, regarding an immoveable
property exists and that such dispute is likely to cause
breach of peace. But once he is satisfied of these two
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conditions, the section requires him to pass a
preliminary order under sub-section (1) and thereafter
to make an enquiry under sub-section (4) and pass a
final order under sub-section (6). It is not necessary
that at the time of passing the final order the
apprehension of breach of peace should continue or
exist. The enquiry under Section 145 is limited to the
question as to who was in actual possession on the
date of the preliminary order irrespective of the rights
of the parties. Under the second proviso, the party who
is found to have been forcibly and wrongfully
dispossessed within two months next preceding the
date of the preliminary order may for the purpose of
the enquiry be deemed to have been in possession on
the date of that order. The opposite party may of
course prove that dispossession took place more than
two months next preceding the date of that order and
in that case the Magistrate would have to cancel his
preliminary order. On the other hand, if he is satisfied
that dispossession was both forcible and wrongful and
took place within the prescribed period, the party
dispossessed would be deemed to be in actual
possession on the date of the preliminary order and the
Magistrate would then proceed to make his final order
directing the dispossessor to restore possession and
prohibit him from interfering with that possession until
the applicant is evicted in due course of law. This is
broadly the scheme of Section 145."
13. Coming to the facts of the present case, it is not in dispute
that the complaint under Section 145 Cr.P.C. was presented by the
SHO, Lamba Hari Singh before the Court of Assistant Collector and
Magistrate on 11.07.1989 whereupon the Executive Magistrate, in
view of a serious dispute between party No.1 and party No.2 in
respect of claiming their respective possession over the lands in
question, passed a preliminary order on 11.07.1989 itself under
Section 146(1) Cr.P.C. to attach the disputed property and the
Naib Tehsildar, Malpura was appointed as Court receiver
authorizing him to take the possession of disputed property in his
custody. Apparently, the order of appointment of the receiver was
passed in order to prevent breach of peace, after noticing the
dispute as to put-forth rival claims for possession by both parties.
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Thereafter, both parties were allowed to put forth their respective
claims to prove the factum of actual possession. The receiver took
the disputed property in his possession on 11.07.1989 itself. Party
No.1 and party No.2 both presented their statements of claim,
alleging their cultivatory possession supported with the revenue
entries of the disputed land in their favour and other documents.
Party No.1, apart from producing the documentary evidence,
produced four witnesses and party No.2 produced as many as 11
witnesses.
14. Learned Executive Magistrate (ACM), after recording the
evidence of both parties, observed that as far as lands of Khasra
No.109/2, 109/3, 113/9 measuring 13 bigha 10 biswa, Khasra
No.113/15 measuring 2 bigha situated at Village Kantoli, is
concerned same is in join khatedari in the revenue record in the
name of party No.1, party No.2 and other khatedars and such land
of joint khatedari to the extent of half share therein have
erroneously being included under proceedings of Section 145
Cr.P.C. Thus, the preliminary order of attachment and proceedings
of Section 145 Cr.P.C. were ordered to be cancelled/dropped in
respect of such lands of joint Khatedari vide final judgment dated
03.05.2000.
15. As far as other lands which are disputed herein, situated at
Kantoli Malpura, the details of which with Khasra number and
measurement are already referred in the judgment dated
03.05.2000 itself, hence need not to be reiterated, the Executive
Magistrate observed that the possession of such lands was laying
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with party No.1 as on 11.07.1989 as also two months prior
thereto and accordingly these lands were declared to be in
possession of party No.1; simultaneously party No.2 was
restrained not to hinder/obstruct in cultivation and possession of
these lands by party No.1. It has been observed by the Magistrate
that party No.1 alleged his possession over these lands after
sanction of mutation in their favour w.e.f. 02.07.1987. It was
observed that party No.1 claimed to harvest the crop of Maize,
Sorghum, over these lands in Samvat 2044-2045 and their crop of
Maize, Sorghum and Sesame were standing at the time of
attachment and taking the possession by the Court receiver on
11.07.1989. Learned Executive Magistrate observed that although
the party No.2 too claims his cultivatory possession since 2 days
prior to 11.07.1989 but no specific details about the nature of
possession and name of crop sowed by them was given. It was
also observed that no documentary evidence to substantiate the
claim of party No.2 to establish their cultivation and possession
over these lands on 11.07.1989 and two months prior thereto is
available on record. Learned Magistrate noticed that the judgment
of Board of Revenue deciding the reference petition under Section
82 of the Land Revenue Act dated 19.06.1987 has been passed in
favour of party No.1 and in pursuance thereof, the mutation of
party No.2 bearing No.28 & 336 has already been canceled; lands
in question have been mutated in the name of party No.1 w.e.f.
02.08.1987. It was noticed that the judgment of Board of Revenue
dated 19.06.1987 has been affirmed by the Division Bench of the
Rajasthan High Court and D.B. Civil Writ Petition No.1823/1987
[2023:RJ-JP:41372] (18 of 23) [CRLR-1040/2002]
filed by the party No.2 Harjinath Vs. State of Rajasthan
challenging the decision on reference has been dismissed vide
order dated 12.08.1987. That apart, learned Magistrate confining
himself to the issue of factum of possession and adhered to the
evidence observing that prior to 11.07.1989, party No.2 lodged
one report bearing No.43/1989 at Police Station Lamba Hari Singh
whereby it appears that on 03.07.1989 party No.1 ploughed the
crop on the disputed land by using tractor. The tractor from party
No.1 was seized by the Police. It was also noticed that prior to
that, party No.1 submitted an application dated 13.06.1989 before
the Superintendent of Police, Tonk mentioning their possession on
lands in question whereas in the application submitted by the
party No.2 Harjinath, it was stated that the Meena party (party
No.1) do not allow them to plough the field. Thus, it is found that
learned ACM weighed evidence of both parties thoroughly to
determine the factum of possession over the disputed lands and
then declared the party No.1 to be in possession.
16. Learned counsel for non-petitioners stressed on the evidence
that the party No.2 Harjinath Jogi and Bhuranath Jogi were
already in cultivatory possession over lands in question and on
filing a revenue suit before the SDO, Malpura on 05.04.1965,
against party No.1 Jujha & Onkar Meena, a decree dated
31.07.1965 has been passed in their favour on the basis of a
compromise and that decree has not been set aside, rather a suit
filed thereafter by Banna, Shaitan Singh to declare the decree as
ineffective has been dismissed in the year 1978. It has been
pointed out that thereafter lands were mutated in the name of
[2023:RJ-JP:41372] (19 of 23) [CRLR-1040/2002]
party No.2, which remained operative till the decision of reference
by the Board of Revenue dated 19.06.1987. Thereafter although,
the mutation was canceled but in that respect, appeal was filed
before the higher authorities seeking to restore the mutation.
Nevertheless, as far as possession is concerned same was never
delivered to the party No.1 and possession remained with party
No.2 only. It has been submitted that even in the complaint made
by the SHO under Section 145 Cr.P.C. as also in the report of
Court receiver taking possession on 11.07.1989, the party No.2
Harjinath Jogi etc were found in possession over lands in question.
Therefore, learned Magistrate committed illegality and perversity
in declaring the disputed property in possession of party No.1 as
on 11.07.1989 and two months prior thereto vide judgment dated
03.05.2000 and such judgment has rightly been set aside by the
Court of Additional Sessions Judge, Malpura vide order dated
18.10.2002. He prayed to reject the present revision petition.
17. This Court finds that the Executive Magistrate while passing
the judgment dated 03.05.2000 has appreciated the evidence, as
a whole, oral as well as documentary, adduced by both parties
extensively, while pondering over to decide the factum of
possession over lands in question. It has been held in the
judgment that by the oral statements of witnesses appeared on
behalf of party No.1 and on the basis of documentary evidence of
Khasra Girdawari, as also other documents, it is proved that after
the judgment of Board of Revenue dated 19.06.1987, the lands
were mutated in the name of party No.1 Jujha Meena & Onkar
Meena and they cultivated the land in question. Statements of
[2023:RJ-JP:41372] (20 of 23) [CRLR-1040/2002]
witnesses appeared on behalf of party No.2 were noticed having
lack of specifications and truthfulness. It was observed that
witness Yasin of party No.2, stated cultivation of only 12 bigha
land by Harjinath and expressed ignorance about the rest land.
Another witness Kana Gurjar could not detail out four boundaries
of the disputed lands on which he stated to be in join cultivation
with party No.2 and to plough the crop of Bajra prior to
attachment of lands. Witness Nanda too stated to be a
shareholder in the crop allegedly sowed jointly with party No.2 but
could not disclosed the name of crop. In statements of other
witnesses, contractions and discrepancy were noticed in respect of
cultivating the crop, nature of crop allegedly ploughed by party
No.2, before or at the time of attachment of lands in question. The
site report dated 11.07.1989 does not verify the presence of any
person who stated to be ploughed the field jointly with party No.2.
Thus, the evidence of party No.2 including site report prepared at
the time of taking possession by the receiver on 11.07.1989 has
been taken into consideration by the learned Magistrate. The
averments made by the SHO, in the complaint are not of much
credence, to decide that which party is in possessionas same are
always disputed and subject to proof. It is clear that after
weighing respective claims and evidence of party No.1 and 2,
learned Magistrate has concluded about the factum of possession
of the disputed property with party No.1 as on 11.07.1989 and
two months prior thereto, accordingly, the declaration of
possession was made in favour of party No.1, in the final
[2023:RJ-JP:41372] (21 of 23) [CRLR-1040/2002]
judgment dated 03.05.2000 by the ACM within the scope of
Section 145 (4) Cr.P.C.
18. This Court finds that the Additional Sessions Judge, Malpura
in exercise of its revisional jurisdiction against the final judgment
dated 03.05.2000 passed by the Executive Magistrate has
exceeded its jurisdiction in re-appreciating the claim of respective
parties and that too after giving a fresh interpretation to the
evidence adduced by parties. The Revisional Court weighed the
evidence in its own way afresh. It is well settled that the scope of
Revisional Court is limited and confined to consider the
correctness, legality and propriety of the impugned order and does
not extend to re-appreciate the entire factual matrix by drowning
itself own interference after giving interpretation to the evidence
on record, afresh. The Revisional Court acted as if it was first
Court to adjudicate the dispute of factum of possession. The
Revisional Court has wrongly observed the Executive Magistrate
did not ponder over factum of possession. It has wrongly been
held by the Revisional Court that Executing Court entered into
adjudication of legal rights of parties. In fact, the Executive
Magistrate apart from evidence of witnesses and documentary
evidence adduced by parties to establish their factum of
possession, also considered the judgment of Board of Revenue
passed on reference and the High Court order affirming the
judgment on reference, in order to consider the factum of
possession in support of evidence produced by party No.1 to prove
his possession. A perusal of the order of Revisional Court,
impugned herein, it appears that the Revisional Court swayed
[2023:RJ-JP:41372] (22 of 23) [CRLR-1040/2002]
away by speedy proceedings in making compliance of the
judgment dated 03.05.2000 and on that count assumed that the
judgment was passed in haste, malafidely and is biased. Such
observations by the Revisional Court are based merely on
assumptions and such perspective thoughts are hypothetical.
19. In addition to above discussion, this Court finds that the
Additional Sessions Judge, while passing the judgment dated
18.10.2002 did not adverted to the legal proposition of law that
the judgment dated 03.05.2000 declaring party No.1 in possession
of lands in question by the Executive Magistrate is not final
adjudication of rights of parties but it is always open for either of
parties including the party No.2 (defeated party) to approach the
Civil Court for adjudication of rights over lands in question and to
establish a better right to get the possession of the disputed
property. Notably, it is relevant to observe that the Additional
Sessions Judge quashed and set aside the judgment of Executive
Magistrate dated 03.05.2000, without issuing any directions for
adjudication of the factum of possession afresh. The directions
issued in the order dated 18.10.2002 to take back possession of
disputed property from the party No.1, which had undisuptedly
been handed over by the Court receiver on 22.10.1987 to party
No.1 in compliance of the judgment dated 17.10.1997 and was
affirmed in the subsequent judgment dated 03.05.2000, so also
directions to re-deposit entire proceeds back in the Government
treasury, which were released in favour of party No.1, are
arbitrary and unwarranted as much as have been passed in
excess/ erroneous exercise of jurisdiction. Thus, in the opinion of
[2023:RJ-JP:41372] (23 of 23) [CRLR-1040/2002]
this Court, the impugned order dated 18.10.2002 passed by the
Additional Sessions Judge, Malpura is not liable to be
countenanced and being erroneous factually as well as legally, is
unsustainable and cannot be affirmed by this Court.
20. Before parting with the judgment, at the cost of repetition
and in the light of scope of adjudication by the Executive
Magistrate under Section 145 Cr.P.C. as has been elucidated
hereinabove with support of the various pronouncements by the
Hon'ble Supreme Court, it is hereby observed that the judgment
dated 03.05.2000, though is being restored but the same will not
preclude either of parties including the party No.2 (non-petitioners
herein) to approach the Civil Court for adjudication of their legal
rights in respect of disputed property including to claim the
possession thereof from party No.1. Needless to observe that the
Civil Court has jurisdiction to give a finding, different from that
which have been passed by the Executive Magistrate in the
judgment dated 03.05.2000, after appreciation of material on
record in accordance with law.
21. As a final result, the instant petition succeeds. The impugned
order dated 18.10.2002 passed by the Additional Sessions Judge,
Malpura, Tonk in criminal revision petition No.21/2000 is hereby
quashed and set aside and the judgment dated 03.05.2000
passed by the Additional Collector and Magistrate, Malpura,
District Tonk is hereby restored. No costs.
(SUDESH BANSAL),J
NITIN /
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