Allowed

Banna and Ors. v. State and Anor

Rajasthan HC3 Jan 2024CRLR/1040/2002

Case brief

AI extract

What is this about?

This criminal revision petition challenges the Additional Sessions Judge's order quashing a Land Revenue Magistrate's decision on possession of disputed agricultural land. The High Court held that the Sessions Judge exceeded jurisdiction by re-appreciating evidence and quashing the final possession order under Section 145 Cr.P.C., restoring the lower court's judgment.

What did the court decide?

Impugned order dated 18.10.2002 passed by Additional Sessions Judge Malpura quashed and set aside; judgment dated 03.05.2000 passed by Additional Collector and Magistrate Tonk restored.

Banna and Ors. Vs State and Anor — Landlord and Tenant | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 1040/2002

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Banna son of Jujha

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Shaitan son of Jujha

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Hanuman son of Jujha

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Gopi Daughter of Jujha

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Gulab wife of Jujha

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Kesar wife of Onkar

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Laxma Daughter of Onkar

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All Resident of Sitarampura, Tehsil Malpura, District Tonk, Rajasthan

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----Petitioners

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Versus

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State of Rajasthan through Public Prosecutor

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Harjinath son of Bhagirath (Since Died through his legal heirs): 2/1. Durganath S/o Harjinath, Resident of Sitarampura, Tehsil Malpura, District Tonk, Rajasthan

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2/2. Bharatnath S/o Harjinath, Resident of Sitarampura, Tehsil Malpura, District Tonk, Rajasthan

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2/3. Jamana Devi Yogi D/o Harjinath, W/o Shyoji Yogi, Resident of Jhirana Tonk, Rajasthan

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2/4. Suvanath D/o Harjinath, W/o Durganath, R/o Nimera, Peeplu, Tonk, Rajasthan

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2/5. Durga Devi Nath D/o Harjinath, W/o Ratan Lal Nath, R/o Bala ji ka Mohalla, Jhirana, Tonk, Rajasthan

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Bhuranath son of Harjinath, Resident of Sitarampura, Tehsil Malpura, District Tonk, Rajasthan

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----Respondents

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For Petitioner(s) : Mr. Biri Singh, Sr. Adv. assisted by Mr. Jaswant Singh For Respondent(s) : Mr. Chandragupt Chopra, PP Mr. Vijay Choudhary

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HON'BLE MR. JUSTICE SUDESH BANSAL Judgment

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: 06/12/202306/12/2023

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RESERVED ON : 06/12/202306/12/2023 PRONOUNCED ON : January 3^rd , 2024 BY THE COURT:

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This Criminal Revision Petition under Section 397 read with

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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,

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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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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.

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It appears that the judgment dated 17.10.1997, though implemented, yet was put to challenge by the party No.2- nonpetitioners 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.

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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.1petitioners 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.1petitioners, invoking jurisdiction of the High Court under Section 397 read with Section 401 Cr.P.C.

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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.

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Heard counsel for both parties at length and perused the material placed on record.

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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.

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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

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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.

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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.

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6.3 According to non-petitioners, decree of SDO dated 31.07.1965 has not been set aside and unless non-petitioners are

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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 nonpetitioners, 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.

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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

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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 204445 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.

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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.

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Per contra, learned counsel appearing on behalf of nonpetitioners, 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

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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.

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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

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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.

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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:

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Section 145- Procedure where dispute concerning land or water is likely to cause breach of peace.-

(1) ………………

(2) ……………..

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(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:

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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 subsection (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).

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(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.

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(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to subsection (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.

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(b) The order made under this sub- section shall be served and published in the manner laid down in subsection (3).

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(7) ……………… (8) ……………..

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(9) ……………..

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(10) ……………”

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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 reproduced hereunder:

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“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:

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"These orders are merely police orders made to prevent breaches of the peace. They decide no question of title..............."

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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.”

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Similar proposition was expounded by the Hon’ble Supreme

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Court in case of Jhummamal Vs. State of M.P. [(1988) 4 SCC

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452], wherein it was held as under:

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“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."

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In case of R.H. Bhutani Vs. Mani J. Desia [(1968) AIR

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SC 1444], the Hon’ble Supreme Court has held as under:-

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“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."

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Coming to the facts of the present case, it is not in dispute

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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.

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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.

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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

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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.

¶134

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

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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.

¶139

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

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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

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judgment dated 03.05.2000 by the ACM within the scope of Section 145 (4) Cr.P.C.

¶148

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

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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.

¶153

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

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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.

¶158

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.

¶159

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.

¶160

(SUDESH BANSAL),J

¶161

NITIN /

Banna and Ors. v. State and Anor

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Banna and Ors. v. State and Anor

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