Lal Mani Devi Vs State of Jharkhand And Ors.

….. For the Petitioner : Mr. Prashant Pallav, Advocate For the State : Mr. Arup Kumar Dey, Addl.P.P For the O.P. No.2 : Ms. Sharda Kumari, Advocate For the O.P. Nos.3-5 : Mr. Rahul Kumar Das, Advocate Mr. Rishav Raj, Advocate

¶12

----------

¶13

PRESENT

¶14

HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

-----

JUDGMENT

…..

C.A.V.On 11.06.2024 Pronounced On: 14/ 08 /2024

¶19

The instant Criminal Revision is directed against the judgment and order dated 19.07.2010 passed by Shri Alok Kumar Dubey, the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi passed in Criminal Revision No. 169 of 2007, whereby and whereunder, the order passed by learned Executive Magistrate, Shri B.N. Choubey in Misc. Case No.1037 of 2003 dated 07.08.2007 declaring the possession of first party namely Lal Mani Devi (petitioner) over the lands under proceeding until the order is revoked by Civil Court of competent jurisdiction has been set aside.

¶20

The facts of the case reveals that on the basis of police report (non FIR No.04 of 2003) proceeding under sections 144 of Cr.PC was initiated between the parties, which was later on converted under section 145 of Cr.PC. Both parties replied their show-cause notice.

¶21

As per petitioner (first party), the land pertaining to Khata No.32, Plot No.264 area 0.61 acres situated at village Kedal, P.S. Sadar District Ranchi was recorded in the name of one Rijhu Mahto and others including Most Balo. It is alleged that during her life time, Most. Balo has executed the sale deed in favour of her daughter Most Salo on 04.01.1944 except the disputed plot. Neither Salo nor her heirs (second party) have got any right, title interest and possession over the land in question. Most Balo was maternal grand-mother of the second party No.14 and the first party is paying rent to the State Government in lieu of her possession.

¶22

In their written restatement, second party members have pleaded that the land under proceeding was admittedly recorded in the name of Rijhu Mahto and Most Balo whose name stands in the remark column of the record of right and she was shown in possession of the disputed land. She was also paying rent to the State of Bihar. On the death of said Most Balo, her sole daughter

¶23

2

¶24

Most Salo being legal heir and successor inherited the property and the second party Nos.1-4 are sons of Most Salo and second party No.5 is her grandson. The second party members are also in possession in the land and have grown paddy crops; hence, proceeding is fit to be dismissed.

¶25

It appears that after considering the oral as well as documentary evidence adduced by the party, learned SDM has entered into the disputed question of title and issue of partition of land and the plea of acquiring the land by Most Salo Devi in the year 1944 through registered sale deed is also not tenable in view of the fact that no mutation order has been obtained in respect of the land. Although, there is finding that land revenue receipt is still being issued jointly in the name of Riju Mahto. Accordingly, arrived at conclusion that prior to 60 days of initiation of the proceeding, the first party was in possession over the disputed land and restrained the second party members from causing any interference in her peaceful possession until contrary order is passed by Civil Court of Competent Jurisdiction.

¶26

The order dated 07.08.2007 passed by learned SDM, Ranchi was challenged in Cr. Revision No.169 of 2007 before the learned Judicial Commissioner, Ranchi, which was disposed off

¶27

Cr. Rev. No.799 of 2010

¶28

3

¶29

by learned Additional Judicial Commissioner -VIII,(F.T.C) Ranchi vide order dated 19.07.2010, who after considering the impugned order and the materials available on record set aside the impugned order with following observations recorded in para 6 of the judgment:-

¶30

“6. Perused the record, I have gone through the documentary evidence on record. On perusal of the certified copy of record of right of Khata No.32 of village Kedal I find that it was recorded in the name of Rijhu Mahto S/o Chayan Mahto and Most Balo wife of Radha Nath Mahto. In remarks column Rijhu Mahto and Most Balo were shown in possession of the plots. The disputed plot is known as Tin Pawa Choura which is shown in possession of Most Balo and consists 0.61 acres. Though, copy of rent receipt filed by the parties goes to show that the name of Rijhu Mahto still exists and it appears that there is no partition in between the parties. There is one photo state copy of the sale deed which goes to show that Most Balo has executed a sale deed in favour of her daughter Most Salo. The correctness, validity and effect of the sale deed are beyond jurisdiction of the court dealing with section

¶31

Cr. Rev. No.799 of 2010

¶32

4

¶33

145 Cr.P.C. and as per settled principle of law possession of one co-sharer is deemed to be possession of other co-sharer. After going through the document and oral evidence on record it appears that there is title dispute of land in between the parties which stood recorded in the name of Rijhu Mahto and Most. Balo and any adverse order would only develop the tension between the parties, instead of deciding the dispute. The parties, if so advised, may took the recourse of another forum and may file suit for declaration of their title, interest and possession/partition but presently as per settled principle of law any one of them cannot be declared as possessing exclusively the disputed land, above.”

¶34

Assailing the impugned order, learned counsel for the petitioner has submitted that learned SDM after apprising from the factual aspects of the case and actual possession over the disputed land at the time of initiation of proceeding and also after meticulously examined the oral as well as documentary evidence has passed the reasoned order declaring the possession to the first party over the disputed land but the Revisional Court has exercised its power beyond the jurisdiction and interfered

¶35

5

¶36

with the impugned order passed by learned SDM in hypothetical manner setting up the case in favour of the second party (respondents), which suffers from illegality and perversity, hence, it is fit to be set aside by allowing this revision.

¶37

On the other hand, learned Addl. P.P. appearing for the State assisted by learned counsel for the respondents/opposite parties defending the impugned order has vehemently argued that the approach of the learned SDM in declaring the possession over the disputed land to the first party was beyond the record. Admittedly, the ancestor of these respondents/opposite parties namely Most. Balo Devi was jointly recorded tenant in the khatiyan along with one Rijhu Mahto. She was all along in possession which was continued by the respondents/opposite parties. It is further submitted that the petitioner has developed a story of oral partition, which has to be proved with concrete evidence in any appropriate civil suit, therefore, there is no illegality or infirmity in the order passed by learned Additional Sessions Judge calling for any interference by way of this revision, which is fit to be dismissed.

¶38

I have given anxious consideration to the impugned order and reasons assigned by the learned Revisional Court that in the Khatiyan, the possession of both parties are shown over the

¶39

Cr. Rev. No.799 of 2010

¶40

6

¶41

disputed plots and no partition between the parties is proved up till now. The legality or validity of the sale deed allegedly executed in the year 1944 by Most Balo Devi can only be decided by the Civil Court of competent jurisdiction and not in a proceeding under section 145 of Cr.PC. It is settled law that possession of one co-sharer is deemed to be possession of other co-sharer. Therefore, in the present scenario the exclusive possession of the petitioner (first party) over the land under the proceeding cannot be declared. It appears that learned Revisional Court has very wisely and aptly passed the order with sound reasons which do not warrant any interference by way of this revision, which appears to be devoid of merits and fit to be dismissed. Accordingly, the present revision is dismissed.

¶42