Hamir Singh vs Bhag Singh

Harjit Singh Bedi, J. (Oral)

This judgment will dispose of Criminal Misc. No. 216M of 1992, 218M of 1992, 220M of 1992 and 1045M of 1992, the facts having been taken from the first noted case. The present litigation has a long and chequered history.

The Dirba Police submitted a report to the Executive Magistrate, Sunam, that there was a dispute between the parties herein regarding land measuring 568 Kanals, 1 Marla, situated in the area of village Khanal Kalan and as there was an imminent danger of breach of peace, the property in dispute be attached and a receiver appointed. The Magistrate issued notices to the parties vide his order dated 18th October, 1985, calling upon them to appear before him on 5th November, 1985 and to produce evidence in support of their respective claims. On the same day, he also passed an order under section 146 of the Code of Criminal Procedure (in short the ''Code'') attaching the land in dispute and appointing the Naib Tehsildar, Sunam, to take possession thereof and to harvest the crop, to dispose of the same and to deposit the sale proceeds. It was also directed that the receiver so appointed was authorized to keep possession of the land in dispute till such time an order of a competent court decided the matter. As the Naib Tehsildar was not willing to take up the assignment, Mr. Baldev Singh, Office Kanungo was substituted as receiver vide order dated 19th November, 85. It appears that one Dev Singh (who is not a party in the present proceedings) who had the same interest as the present petitioners, filed a writ petition in this court challenging the attachment of 28 kanals, 17 marlas out of the entire land and in view of the orders of this court dated 14th May, 1985, the Executive Magistrate, Sunam, dropped the proceedings qua this land. Subsequently, vide order dated June 30, 1986, the said Magistrate also dropped the proceedings regarding the rest of the land but failed to pass any order regarding the restoration of its possession. This order was, accordingly, challenged in a revision petition before the Additional Sessions Judge, Sangrur, who vide his order dated 23rd of February, 1987 directed the restoration of possession to the petitioners herein i.e. Bihla Singh son of Sawan Singh and Sawan Singh son of Ha (sic.) Singh, two of the members of one of the contesting parties. This order of the Additional Sessions Judge, Sunam was further challenged by one Bhag Singh and others in this court and Hon''ble Mr. Justice I.S. Tiwana, allowed the revision petition on 25th May, 1987, and issued a direction to the Executive Magistrate, Sunam, who had dropped the proceedings under section 145 of the Code vide his order dated 30th June, 1986 to reinvestigate the matter and to pass a specific order as to whom the possession of the land was to be restored. The matter was, accordingly, put before the Executive Magistrate, Sunam and subsequently transferred to the SubDivisional Magistrate, Barnala, who heard the parties and vide order dated 8th September, 1987 held that the petitioners had not been able to establish a valid claim with regard to their possession of the land in dispute at the time when it was attached and, accordingly, directed that the possession of the land in dispute be handed over to the respondents herein. The said order of the SubDivisional Magistrate, was once again challenged before the Additional Sessions Judge, Sangrur, who on 15th July, 1988 set aside the same and remanded the case to the said Magistrate for decision afresh. The matter once again came up before the concerned SubDivisional Magistrate, who after considering the evidence adduced by the parties gave a finding in his order dated 30th July, 1990 that neither of the parties had been able to prove their possession over the disputed land except for the area 28 Kanals, 17 marlas which was in possession of Dev Singh and further that the land be attached under section 145 of the Code until a competent court could determine the rights of the parties with regard thereto. He also appointed Tehsildar Sunam as a receiver of the property. Aggrieved by this order, two revision petitions by each of the parties were filed before the Sessions Judge, Sangrur, who in his order dated 12th October, 1991 upheld the order of the SubDivisional Magistrate, holding that on the evidence as it existed, it was not possible to determine as to which party was in possession of the land in dispute when the first attachment had taken place. The learned Sessions Judge observed that the revenue record in the shape of khasra girdawris and jamabandis produced by the petitioners could not be relied upon as in another litigation between the parties inter se before Sh. D.S. Chhina, Sub Judge 1st Class, Sangrur, the Court had recorded a finding that this record was unreliable and that the khasra girdawris entries appeared to have been made in a casual manner. Aggrieved by the aforesaid order, four applications under section 482 of the Code have been filed two each by the contesting parties.

Mr. M.S. Khaira, learned counsel for the present petitioners, has urged that the that findings of the SubDivisional Magistrate as endorsed by the Sessions Judge, Sangrur the civil court had commented adversely on the aforesaid revenue record, was incorrect as there were no such observation in the judgment. He has also urged that the revenue record as it did exist particularly the jamabandi entries to which a presumption of truth was attached under section 44 of the Punjab Land Revenue Act could not be ignored by the authorities below, as the only evidence produced by the respondents in support of their claims were their own affidavits.

Mr. Mangat, learned counsel for the respondents, has however, raised a preliminary plea that in the light of the judgments of the Supreme Court including a Division Bench decision reported in Dharampal and others v. Smt. Ramshri and others, 1993 SC 1361, that section 397(3) barred a second revision and hence such a petition camouflaged as an application under the garb of section 482 of the Code, was not maintainable. Mr. Mangat has further urged that as the concurrent findings of fact had been recorded by the authorities below that it was not possible to determine the right to possession of the property at this stage, no interference was called for in the present proceedings.

I have heard the learned counsel for the parties and find that the present petitions deserve to succeed.

Meeting Mr. Mangat''s preliminary objection, Mr. Khaira, learned counsel has relied on two judgments of the Supreme Court, including a three Bench decision, reported as Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 and a two Bench decision in Raj Kapur and others v. Delhi Administration and others, 1980 SC 258 as also a number of judgments of this Court reported as Charanjit Singh and others v. Smt. Gursharan Kaur, 1990(2) RCR 584 and Chaman Lal Sankhla v. Narain Datt Vats, 1991(2) CLR 539 and decision of this court in Criminal Misc. No. 2689M of 1994 dated 14th July, 1994, to show that the present petitions were maintainable. It is true that the observations in the Supreme Court judgment cited by Mr. Mangat do support his case, but the Supreme Court itself in the two cases referred to by Mr. Khaira, has held that the bar to interfere imposed by section 397(3) was not an inflexible one and the court was required to step in under section 482 of the Code to set things right to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. In Madhu Limaye''s case (supra) it was observed as under :

"In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power of the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction......"

The matter was reiterated in Raj Kapur''s case (supra) wherein it was held that the inherent powers of the High Court under section 482 do not stand repelled even when the revisional power under section 397 overlaps as the opening words of section 482 ordain that ''nothing in this Code'' can affect the amplitude of the inherent powers given by virtue of section 482. Summing up, his Lordship Krishna Iyer, J. went on to observe

"In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court''s jurisdiction. The limitation is selfrestraint, nothing more..."

The Division Bench of this Court in Chharanjit Singh''s case (supra) crystalised the legal position on a consideration of the aforesaid two judgments, as also various others, by holding that the provisions of section 397 of the Code did not constitute or operate as a bar to the exercise by the High Court of its inherent powers under section 482 of the Code, but went on to caution that such interference, particularly against an order of revision made by the revisional court, should be sparingly made. The ratio of the above cited cases has now to be applied to the facts of the present case. It is true that this court would interfere, though hesitatingly, on a finding of fact recorded in the revisional jurisdiction, but where the very basis for the decision of the authorities below does not exist, interference is called for. As already mentioned above, the observations of the authorities below that Sh. D.S. Chinna, Sub Judge 1st Class, had held that the revenue record could not be relied upon was, in fact, not so made. Although Shri Chhina had observed that the Khasra Girdawris of the year 1984 onwards appear to have been made in a casual manner, but there was no adverse comments on the record which pertained to the earlier period. It is to be borne in mind that all the respondents have been able to produce in order to substantiate their plea of possession are their own affidavits (Exhibits R1 to R29) and these being admittedly self serving cannot have precedence over the revenue record including Jamabandis for a long period which has been produced by the petitioners. It is, therefore, apparent that to deprive the petitioners of their rightful possession for a period of more than 10 years was not justified and interference under section 482 of the Code is called for to secure the ends of justice. It is to be borne in mind that the proceedings were earlier dropped in the year 1986 and the land lying vacant since then has not been utilised by any of the parties so far. It has been urged by Mr. Mangat that some civil suits have been filed now at a very belated stage by the respondents seeking a declaration that they are the owners of the property and it is also conceded that they are at the very initial stage of their prosecution. It is conceded that some time will be taken before the final conclusion of these proceedings and, as such, it would be in the interest of both the parties that some interim arrangement be made. I, therefore, allow the petitions and direct that the petitioners be put in possession of the property in dispute within a period of three months from today provided they file affidavits in the court of the SubDivisional Magistrate, Barnala, that in case the civil suits aforesaid are decreed by the trial court in favour of the respondents, the petitioners will deliver the possession to the decreeholders along with the standing crops within a period of one week of the judgment without waiting for the period of appeal and without waiting for an order of stay from the higher court. It is also directed that the petitioners will give security towards the payment of mesne profits at the rate of Rs. 2000/ per acre, per crop, meaning thereby at the rate of Rs. 4000/ per year for the period for which they remain in possession of the land. The petitioners will also file affidavits in the civil court that in case the civil suits, as above, are decreed, they shall pay all the dues payable by them in lumsum to the decreeholders to the extent of their shares. It is further made clear that in case the petitioners hold on to the land in dispute for more than a week after the civil suits have been decreed against them by the trial court, they shall compensate the respondents at the rate of Rs. 10,000/ per acre per year. This undertaking too will form a part of the affidavits in the trial court. This order has been passed keeping in view the interest of both the parties as also the nature of the property. In case, the undertakings are not filed in the above manner, the petitions will be deemed to be dismissed.

JUDGMENT accordingly.