Babulal vs Majboot Singh and Others

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. against the order dated 16.12.2009 passed by III Additional Sessions Judge, Bhind (M.P.) in Criminal Revision No. 197/2009, whereby the order dated 09.10.2009, passed by the SDM, Pargana, Mehgaon, in Case No. 9/08X145 has been set aside. The brief facts of the petition are that petitioner and respondents No. 1 & 2 are the members of one family and possessing agricultural land bearing survey Nos. 299, 301, 302, 451, 454, 494, 497 & 848 situated at Village Kanathar, Tahsil Mehgaon. The owner of the aforesaid land was Kanhai who had gifted the aforesaid land in favour of Mandir Ramjanki for Pooja and maintenance and respondent No. 1 was appointed as a Manager. Thereafter, in the year 1984, partition took place between the petitioner and respondent No. 2 and they started living separately. The agricultural land, which has been gifted to Idol of temple Ramjanki, was also partitioned and both the petitioner and respondent No. 1 got 1/2 share each. The petitioner and respondent No. 1 started cultivating the said field, however on 23.05.2008, respondent No. 1 preferred an application u/s 145 of Cr.P.C. with a prayer that the possession of the entire land be given to him. The learned SDM, after considering the reply and the report of police, on 08.09.2008 has passed an order holding that the disputed land be handed over to some independent person. In compliance of the order of the learned SDM, the possession of the said land was handed over to one Amritlal Tyagi. Being aggrieved by the order of the learned SDM, respondent No. 1 preferred a Criminal Revision before the Special Judge, Bhind, who stayed the order passed by the SDM, against which M.Cr.C. No. 656/2009 u/s 482 of Cr.P.C. was preferred before this Court and vide order dated 28.10.2009 this Court directed the parties to maintain status-quo. Thereafter, the learned Special Judge, Bhind, remanded the matter to the SDM with a direction to pass the order on merits. Thereafter, respondent No. 1 preferred an application before the SDM stating therein that compromise has been arrived at between the parties in Panchayat, therefore, his application u/s 145 of Cr.P.C. may be dismissed. Learned SDM dismissed the application u/s 145 of Cr.P.C. vide order dated 29.06.2009, however, the petitioner has filed an application before the SDM praying that after disposal of the application u/s 145 of Cr.P.C., now, Supurdigi of the land in favour of Amritlal is no more required. It was prayed that the possession be handed over to the parties as it was prior to filing of the application u/s 145 of Cr.P.C. However, the learned SDM has disallowed the prayer by holding that respondent No. 1/Manager has no right to remain in possession of the land, which was held by Idol of Ramjanki temple. The respondent No. 1 has preferred revision before the IIIrd ASJ, Bhind challenging the order of SDM. The learned Additional Sessions Judge set aside the order dated 9.10.09 whereby interim Supurdigi was directed to be continued. Being aggrieved with the same, this petition has been filed.

Learned counsel for the petitioner submits that the order passed by the learned IIIrd ASJ, Bhind is illegal and is liable to be set aside. The learned SDM has disposed of the matter and continued the order by which the disputed land was given to Supurdigidar. The learned IIIrd ASJ, Bhind has committed illegality in setting aside the order passed by the learned SDM. The respondent No. 1 has filed an application u/s 145 of Cr.P.C., which has to be disposed of either on the basis of the police report and the possession has to be given to Supurdigar or after disposal of the application the possession should be given to both the parties. The learned IIIrd ASJ has not considered this aspect and has committed an illegality. It is further submitted that without deciding the dispute regarding the possession, possibility of dispute between the parties will remain continue, therefore, the disputed land should remain to be attached or should be given in possession of the parties as earlier. It is prayed that the order passed by the learned IIIrd ASJ be set aside and the order passed by the learned SDM be affirmed.

Learned counsel for respondent No. 1 supported the order passed by the learned IIIrd Additional Sessions, Judge, Bhind submitting that when the application preferred by respondent No. 1 was dismissed vide order dated 29.06.2009, the interim order itself loses its effect, hence it is prayed that the petition be dismissed.

In order to appreciate the rival submissions of the learned counsel for the parties, I have perused the record.

From the perusal of the gift-deed (Annexure P/1), it transpires that Kanhai who was the owner of the land situated at Village Kanathar, Tahsil Mehgaon had gifted the land for pooja and maintenance of the temple Ramjanki, appointing Majboot Prasad as Manager. The agreement between Majboot Prasad, Babulal and Bhawani Prasad, reveals that both the parties agreed to have 1/2 share of the land given for pooja and maintenance of the temple Ramjanki.

From perusal of Annexure P/3, it appears that respondent No. 1 Majboot has filed an application u/s 145 of Cr.P.C.

Annexure P/5 is the application filed by Bhawani and Babulal u/s 146 of Cr.P.C. with a prayer that disputed land be attached. Vide order dated 08.09.2008 (Annexure P/6) the land was attached and given in Supurdigi to Supurdigidar Amritlal Tyagi.

Annexure P/10 is the application filed by Majboot stating that he has filed application u/s 145 of Cr.P.C. Due to intervention of Panchayat, the matter has been settled and he does not want to press the application. It is prayed that attachment of the land be vacated. On this, learned SDM passed the order dated 29.06.2009 (Annexure P/11). The order dated 29.06.2009 reveals that the learned SDM has dismissed the application filed by Majboot u/s 145 of Cr.P.C., however, he has not made any order regarding the attachment of the land.

Annexure P/12 is the application filed by Babulal submitting that the disputed land was attached and given in Supurdigi to Amritlal and on the basis of the application of Majboot, the application u/s 145 of Cr.P.C. has been dismissed, but no order has been passed regarding attachment of the land therefore order for attachment be vacated. On this, learned SDM has passed the order on 09.10.2010 (Annexure P/13). The learned SDM has dismissed the application holding that respondent No. 1 has no right on the disputed land, which is given to the temple of Ramjanki, and has directed that the disputed land shall remain attached.

The order passed by SDM was challenged before the learned Additional Sessions, Judge Bhind and the learned Additional Sessions Judge set aside the order by holding that the proceeding u/s 145 of Cr.P.C. has been dropped, hence, the application u/s 146 of Cr.P.C. for attachment of the land automatically loses its effect.

The submission of the learned counsel for the petitioner is that the learned Additional Sessions Judge, Bhind has committed illegality in setting aside the order passed by the learned SDM, directing continuance of attachment of the disputed land. There is no dispute that the proceeding has been initiated by respondent No. 1 Majboot u/s 145 of Cr.P.C. and the order of attachment was passed on the basis of the application filed by Bhawani and Babulal u/s 146 of Cr.P.C. When the main proceeding u/s 145 of Cr.P.C. has been dropped on the basis of the application filed by respondent No. 1, there was no need to continue the interim order of attachment. It is surprising that in spite of the prayer made by respondent No. 1 Majboot that the order of attachment be vacated, no order was passed in this regard. In my opinion, once main proceeding u/s 145 of Cr.P.C. has been dropped, the interim order passed u/s 146 of Cr.P.C. for attachment of the property automatically stands vacated. Learned IIIrd ASJ, Bhind has not committed any illegality, impropriety or irregularity in passing the impugned order. This petition being devoid of merits is liable to be dismissed and consequently it is dismissed.