Doongar Ram vs Ramu Ram and Another

K.S. Lodha, J.—This revision involves a very small question The SHO, Police Station Rawatsar bed filed a complaint against Doongarram and Ramuram alleging that there was a dispute between two, in respect of the possession of Killas Nos. 3, 8 and 13/3 of Square No. 192/32 of Chak No 3 RWR, which was likely to cause a breach of peace. On this the learned Sub-Divisional Magistrate, Nohar purported to take proceedings u/s 145 Cr PC. Notices were issued to both the parties. Doongar Ram filed his reply but Ramuram did not file any reply. It appears that oral evidence were taken and some documents were filed by both the parties. After hearing the learned Counsel for the parties, the learned Sub-Divisional Magistrate, Nohar by his order dated 12-2-1975, declared that Doongar Ram was in possession over the land in dispute before the filing of the complaint u/s 145, Cr PC and declared the possession of Doongar Ram over the land in dispute Aggrieved of this Ramuram filed a revision before the learned Additional Sessions Judge, Nohar. The learned Addl. Sessions Judge came to the conclusion that the learned Sub-Divisional Magistrate did not at all proceed according to law. He never recorded either on 26-6-1984 or on any later date that he had satisfied himself from the Police Report or upon any other information that a dispute likely to cause breach of the peace existed concerning the land. Thus there was no basis for initiating the proceeding u/s 145, Cr. PC. He was further of the opinion that on the merits of the matter also there did not appear to be any apprehension of breach of peace, as the land in dispute clearly appeared to have been allotted to and was in possession of Ramuram. He accordingly set aside the order of the learned Sub-Divisional Magistrate but while doing so, he declared the possession of Ramuram and quashed the proceedings u/s 145, Cr. PC by'' his order dated 15-4-1981. Aggrieved of this Doongar Ram has come up in Revision.

The only contention raised by the learned Counsel for the petitioner is that when the learned Addition Sessions Judge has quashed the proceedings u/s 145 Cr. PC holding that neither a preliminary order was issued nor there appeared to be any apprehension of breach of the peace, he could not have declared the possession of Ramuram or any of the parties but should have left the parties to get their rights decided in accordance with law.

The contention of the learned Counsel for the petitioner appears to be sound and deserves to be accepted. When the revision was heard on 21-9-1988, the learned Counsel for the non petitioner Ramuram had not appeared but today when the case was listed for dictation of judgment, he appeared and I have heard him. He, also is not in a position to controvert the contention of the learned Counsel for the petitioner. When the learned Additional Sessions Judge had come to the conclusion that the learned Sub-Divisional Magistrate did not record any preliminary order regarding his satisfaction that there was likelihood of the breach of the peace in respect of the land in dispute nor such a likelihood even appeared from the record, he had no jurisdiction to proceed u/s 145 Cr.PC and quashed the proceeding u/s 145, Cr.PC. The learned Additional Sessions Judge should also not have declared the possession of any of the parties. A declaration can he made only if the proceedings u/s 145, Cr.PC have properly been initiated and it is proved that a party had been in possession of the land in dispute at the date of the order made under Sub-section (1). If no order under Sub-section (1) had been passed by the learned Magistrate the question of declaring the possession of any of the parties did not arise. Therefore, this part of the order of the learned Sessions Judge deserved to be set aside.

The Revision is partly allowed The part of the order of the learned Additional Sesions Judge, Nohar, by which he declared that Ramu Ram was in possession of the land in dispute is set aside. The parties will be free to get their rights decided in accordance with law.