Dismissed

Manti Devi v. the State of Bihar and Ors.

Patna HC17 Sept 2012CR. MISC./16028/2011

Case brief

AI extract

What is this about?

Patna High Court rejected a criminal miscellaneous petition challenging a Sessions Court order setting aside a Magistrate's disposal of a dispute over property aimed at preventing obstruction. The Court held the Magistrate exceeded jurisdiction by declaring possession under Section 144 Cr.P.C. instead of Section 144 Cr.P.C.

What did the court decide?

Case disposed of; parties directed to approach civil court for declaration of title and possession.

Manti Devi Vs the State of Bihar and Ors. — Civil Procedure and Limitation | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16028 of 2011

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====================================================== Manti Devi wife of Sheo Lal Singh @ Sablakh Singh, resident of villageMirjapur Nohata, Station Road, PS-Fathua, District-Patna. .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Magistrate, Patna 3. S.S.P., Patna 4. S.D.O., Patna City 5. Revindra Nath Tiwary son of Late Rishikesh Tiwary, resident of village-Mirjapur Nohata, Bari Mandir, PS-Fathua, District-Patna. 6. Hari Shankar Nath Tiwary son of Late Ram Narayan Tiwary, resident of village-Mirjapur Nohata, Bari Mandir, PS-Fathua, District-Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Baxi R.S.P.Sinha, Sr. Adv. Mr. Nirmal Kumar, Adv. For the Opposite Party/s : Mr. Ramakant Sharma, Sr. Adv. Mr. Rajesh Kumar, Adv. For the State : Pushpa Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER

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4 17-09-2012 Heard the parties.

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2. In this case, the petitioner is challenging the order dated 9.3.2011 passed by the Additional Sessions Judge-II, Patna in Cr. Rev. Nos. 144 of 2010/05 of 2011 whereby and whereunder the court below set aside the order of S.D.M., Patna City.

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3. An application of intervention has been filed on behalf of Prashant Kapoor and others making a statement that they have purchased a land bearing Khata No. 107, Plot Nos. 109 and 110 along with Pakka structure. It has been mentioned that they

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are interested party to this case and any judgment passed by this

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Patna High Court Cr.Misc. No.16028 of 2011 (4) dt.17-09-2012

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Court would adversely affect them.

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4. The petitioner has objected the intervention petition on the ground that intervenor has not been made a party to this case and at the same time, he has already sold the property to one Sanjeev and Sri Raj Kumar Sah and as such, the intervention petition is liable to be rejected.

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5. Even accepting the argument of the petitioner it will not change the situation, as this Court is not going to decide the right, title and possession of either of the parties. This Court is only testing the order passed by the Additional Sessions Judge-II in Cr. Rev. Nos. 144 of 2010/05 of 2011 vis-à-vis the order dated 27.1.2010 passed by learned Sub-Divisional Magistrate, Patna City in Misc. Case No. 791/2009.

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6. It appears from the record that the petitioner is claming that he had purchased a land measuring 0.1 decimal attached with the Pakka pose house on 22.6.2009 appertaining to Khata No. 107, Plot No. 107 of village Mirjapur Nohatta from one Most. Pyari Devi, Kanti Devi and Maheshwari Devi on payment consideration amount of Rs. 2,91,000/-. In pursuance of the purchase made by the petitioner, the Jamabandi has been created in her name and she is paying rent to the State Government without any objection from any side and accordingly, the Circle

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Patna High Court Cr.Misc. No.16028 of 2011 (4) dt.17-09-2012

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Officer has issued the Land Possession Certificate in favour of the petitioner. It appears from the record that opposite party Nos. 5 and 6 has also claimed to have purchased the land appertaining to Khata No. 107, Plot Nos. 109 & 110 of Mauja Mirjapur Nohatta through the registered sale deed from the vendor and took possession of the property on the day of registration. A F.I.R. was lodged by O.P. Nos. 5 and 6 vide Fathua Police Station Case No. 427 of 2009 u/s 448/380 of the Indian Penal Code stating therein that son and husband of the petitioner along with others had entered into the said house after illegally, breaking the lock and took illegal possession of the house in question and removed the articles worth Rs. 10,000/-. On the basis of Police report, a proceeding u/s 144 Cr. P.C. was initiated against the parties and the learned Magistrate vide order dated 27.1.2010 passed the order in favour of the petitioner and made the order absolute in favour of the petitioner and directed the Police to hand over the key to petitioner, Manti Devi. This order was challenged before the Sessions court in Cr. Rev. No. 144 of 2010/05 of 2011. The Additional Sessions Judge-II, Patna vide order dated 9.3.2011 held that the recording of finding by the Magistrate about possession of petitioner over the property in dispute and direction to the Officer Incharge, Fatuha Police Station to hand over the key of the

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Patna High Court Cr.Misc. No.16028 of 2011 (4) dt.17-09-2012

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disputed house to the petitioner in an illegal order not sustainable in law giving a reason that in a proceeding under section 144 Cr. P.C. the Magistrate can exercise power only in emergency for the purpose of preventing the obstruction, annoyance or injury to human life, health or safety or disturbance of the public tranquility or riot or an affray. The issue of possession can only be decided in a proceeding u/s 145 Cr. P.C. and accordingly, the Revision petition was allowed.

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7. The counsel for the petitioner submits that it is a fact that in a proceeding u/s 107 Cr. P.C., the Police has obtained the key from the petitioner and the Magistrate, when order was passed in favour of the petitioner, has rightly directed the Police to hand over the key to the petitioner as the Police in a proceeding u/s 107 Cr. P.C. had wrongly taken the key from the petitioner. The counsel for the petitioner further submits that the order passed by the Magistrate was correct and there was no justification for the Revisional Court to interfere with the order when on the date of passing of the impugned order, the effect of order arising proceeding u/s 144 Cr. P.C. after lapse of 60 days ceased to operate.

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8. He has further submitted that when admittedly possession of the petitioner was found by the Magistrate then this

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Patna High Court Cr.Misc. No.16028 of 2011 (4) dt.17-09-2012

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Court under section 482 Cr. P.C. can give a direction to hand over the key to the petitioner and has relied on a judgment reported in 1984 PLJR 720 (Rajiv Bharti Vs. State of Bihar) whereas the counsel for the other side has submitted that the Magistrate u/s 144 Cr.P.C. proceeding cannot declare the possession of either of party and possession can be declared in 145 of Code proceeding and for the right, title and possession, the party will have to approach to the Civil Court of competent jurisdiction.

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9. He has further stated that a proceeding u/s 144 of the Code comes to an end after 60 days that does not mean that the wrong direction given by the Magistrate u/s 144 proceeding of the Code will not come under judicial scrutiny of higher court under revisional jurisdiction. The opposite party has further submitted that he has purchased plot Nos. 109 and 110 of Khata No. 107 whereas the petitioner has purchased plot No. 107, Khata No. 107 and he tried to encroach upon the property which has been purchased by the opposite parties.

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10. Having considered the rival contention of the parties, so far the point that has been raised by the petitioner, in an admitted case, the Court can give direction to hand over the key to the party in possession. There is no quarrel in the proposition that in a case when the court finds that a particular person was in

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Patna High Court Cr.Misc. No.16028 of 2011 (4) dt.17-09-2012

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possession of the property and wrongly dispossessed, this Court in exercise of power u/s 482 of the Code can give direction to the Police to hand over the key but in this case, this Court is only testing the order that has been passed by the Sessions court at the same time, the possession of the parties are completely in doubt and it cannot be said that the petitioner or the other side was/is in possession of the disputed property. This Court is not deciding the right, title and possession of the party and the Magistrate has gone beyond the jurisdiction by giving direction to the police for handing over the key to the petitioner thereby declared the possession of the petitioner which can only be decided in a proceeding u/s 145 Cr. P.C. This Court finds that the order passed by the learned Sessions Judge is completely correct and it does not require any interference However parties are at liberty to approach the civil court of competent jurisdiction for getting their respective right, title and possession declared.

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11. This Court does not find any merit in the present petition. Accordingly, this case is disposed of.

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(Shivaji Pandey, J)

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Mahesh/-

Manti Devi v. the State of Bihar and Ors.

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Manti Devi v. the State of Bihar and Ors.

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