AI Structured Summary
Not yet generated for this judgment
Judgment
V.D. Gyani, J.—This revision petition is directed against the order dated 17.6.96 as passed by the Executive Magistrate in Case No. 135M/96 and 19.9.96 as passed by the Sub-Divisional Magistrate, Silchar in the above number case refusing to vacate the order of attachment passed u/s 145/146 Code of Criminal Procedure.
Heard learned Counsel for the parties. In order to appreciate the rival contention advanced at the Bar, it would be pertinent to note some basic facts. There has been a long civil litigation between the parties. The land in dispute is at measuring 13 Bighas, 18 kathas covered by Dag No. 580, 581, 582, 583 of Patta No. 74, it was purchased by Petitioners grand father Budhan Nunia and it is the Petitioners claim that they have been continuously in peaceful possession and enjoyment of the land in question on which they have constructed their own dwelling house and remaining portion is used for cultivation. The sale deed dated 9.5.1929 is placed on record as Annexure - A. On death of Budhan Nunia, the periodic patta were transferred in favour of Raghunandan Nunia, father of the Petitioner No. 1. A copy of the patta is placed on record as Annexure - B.
A title suit No. 164 of 1978 was filed by Abdus Sukkur Borbhuyan claiming that he had purchased a plot of land at measuring 14 Bighas, 14 Kathas from Ram Dahiya Bahali Prasad on 26.2.1970 and Bahali Prasad Bania delivered demarcated possession of Bigha of land in Dag No. 681. This suit was decreed by the trial Court on 15.2.1983, the Petitioner preferred an appeal being Title Appeal No. 48 of 1983 and the appellate Court set aside the trial Court judgment and decree, it was held that the Petitioners continuous possession and perpetuation of title through the operation of doctrine of adverse possession was up-held by the appellate Court. A copy of the judgment and decree dated 31.1.1985 is placed on record as Annexure-C. Second Appeal No. 70 of 1985 was preferred before this Court which was dismissed vied judgment dated 8.8.1995. A copy of the said judgment dated 8.8.1995 is placed on record as Annexure-D. It is the Petitioner''s case that having failed in their bid to grab the property before the Civil Court and having lost up-to High Court, the Respondent Abdus Sukkur suppressing material facts and in collusion with the local police lodged the Ejahar before the Officer-in-Charge, Dholai P. S. On 9.4.1996. The Petitioners produced all the documents including the judgments of the appellate Court and the High Court, despite this the police on 9.4.96 attached the land and a concocted report was submitted to the Executive Magistrate, on 17.6.96 the Executive Magistrate passed the order, Annexure-G u/s 146(1) Code of Criminal Procedure. The Petitioner filed an application before the Executive Magistrate for Vacating or cancelling the attachment order which he dismissed vied order dated 19.9.96 It may be noted here that in the meantime Abdus Sukkur died on 10.6.1996.
This revision petition is filed against the above two orders dated 17.6.96 and 19.9.96, Annexures - G and H.
learned Counsel appearing for the Petitioner urged that the impugned orders passed are wholly without jurisdiction and apart of lack of jurisdiction on the part of the Executive Magistrate, the orders are perverse on facts who were purposefully distorted to pass the self-serving orders in total disregard of settled principle of law.
learned Counsel for the Respondents on the other hand has disputed the Petitioner''s claim and averment of facts as contained in paragraphs 5,6,7 and 8 of the revision petition. The subject of the present proceeding is not covered by the civil suit, T. S. No. 164/78, T. A. 48/83 and the Second Appeal No. 70/85 which relate to. only l(one) bigha of land on the Dag No. 681. The patta published in the name of Raghunandan Nunia has been denounced as collusive document which does not confer any title in respect of the disputed land. It was also urged that T. A. 48/83 was dismissed on technical ground. It was argued that being emboldened by the dismissal of the Second Appeal 70/85, the Petitioners are now trying to forcibly occupy the disputed land in question. It was resisted by the Respondent-opposite party and this has given rise to serious apprehension of breach of peace. It was submitted that the initiation of the present proceeding is quite independent of the civil suit.
In this connection, the judgment of this Court in Second Appeal No. 70/85 has been placed on record as Annexure-D to this petition. While dismissing the second appeal the learned Judge has noted:
That is what was happened in the instant case. Both the parties adduced evidence in respect of their claim of adverse possession of the Defendants and both the Courts also considered this espect of the matter. The findings of the appellate Court regarding adverse possession is the findings of fact is binding on me sitting on Second Appeal. I do not find that these findings of facts arrived at by the appellate Court is a perverse findings and that has been arrived at without considering the materials on record.
Accordingly, there is no merit in this Second Appeal and the same is dismissed.
It cannot be gain said that the findings recorded by the Civil Court are not binding on the criminal Court. The criminal Court is bound by the findings recorded by the highest Court of the State even if it is relate to adverse possession and the adverse possession means:
''Adverse Possession'' means hostile possession which is expressly or impliedly in denial of the tide of the true owner, Such possession must be actual and exclusive under a claim of right, adequate in continuity in publicity and in extent, so as to show that it is adverse to the true owner. Such possession in denial of the title of the true owner, must be peaceable, open and continuous. It must be open and hostile enough to be capable of being known to the party interested.
The Executive Magistrate on 17.6.96 passed an attachment order u/s 146(1) Code of Criminal Procedure and at the same time prohibiting entry of both parties into the disputed land. The Petitioners moved the Executive Magistrate for vacating the order, who on 19.9.96 passed the following order (Annexure -II):
Both parties present. Heard both parties on point of withdrawal of attachment order. Both parties seems eager to possess the land. If attachment order is withdrawn both parties may try to grab the D/L. This may lead to serious breach of peace. Hence the attachment order stays. I Party submitted w/s and petition praying for inclusion of legal heirs of original. I party who died on 10.6.96 The legal heirs of late Hazi Abdul Sukkur Borbhuyan may be included in the name of 1 party. Next date - 24.10.96.
The schedule land as given in the order dated 17.6.96 is as follows
Ph- Chatla Mouza Borjalenga
Pt- VI 2nd R. S/. Patta No. 158 Dag No. 683 land 3B- 15K - 8 Ch (Tilla land) & Patta No. 159 covered by Dag No. 682 total land 3B - 17-6 Ch (Cultivation land) Total land 7 B - 12K -14 Ch.
Bounded by North - Land of Narendra Ch. Das
South - Land of Harmohan Das & Ramgali Nunia
East - Land of Deherndra Das
West - House of 2nd party Motilal Nunia (on tilla land)
The Petitioners'' case is that this dispute has already been decided by the Civil Court and the opposite party has lost throughout. The judgment delivered by this Court in Second Appeal No. 70/85 has already been quoted above. While the attempt of the opposite party Respondent was to show that the land is something different from one which was the subject matter of the civil proceedings and this plea is now sought to be raised by the opposite party who had filed the Title Suit No. 164/78 in the Court of the Munsiff No. 2, Silchar claiming that he had purchased the plot of land measuring 14 Bigha 14 Kathas. This suit was decreed by the trial Court, but on appeal the final appellate Court as per judgment dated 31.1.85 (Annexure - C) delivered in Title Appeal No. 48 of 1983 set aside the trial Court''s judgment and decree. It would not be out of place to note some of the findings recorded by the first appellate Court which is reproduced below:
Plaintiff has failed to trace out title of this Abdul Sukkur as I find nothing on record to show the interest of Abdul Sukkur. The contents of Ext. 1 would however show another endorsement No. 1 whereupon it is written that vied order dated 7.5.62 the name of Abdul Sukkur been inserted in place of Raghunandan and Benode on the strength of purchase. Plaintiff has not filed any document title to show the existence of interest of Abdul Sukkur in the said patta No. 159. Exts. 3 and 4 would show that the possession of the decrital land was given to the decree holder evicting the judgment debtor therefrom on 5.7.59. Thus if this eviction of the Defendants or their predecessor - in -interest was really effective, there would have been no little occasion for institution of a proceeding u/s 144 Code of Criminal Procedure against the present Defendants on 13.8.62 vied Ext. F. Therefore, there is no clear evidence to trace out the right, title and interest and possession of Bahali Prasad Bania on 26.2. 70/page No. 8 or since before that date on which the Plaintiff has alleged to have acquired title and possession on the strength of his purchase vide the registered sale deed executed in his favour (refer Ex. 2).
....
In conclusion, therefore, I find that the Plaintiff has not been able to prove his right, title and interest on the strength of his purchase vide sale deed Ext. 2 and there is no legal evidence to show that the Defendants were licensees under him. Both the issue, therefore, stands decided against the Plaintiff.
On the point of element of adverse possession the first appellate Court has also noted as follows:
A decision on the aforesaid issues are sufficient indicator of adverse title in favour of the Defendant Particularly, patta Ext. C payment of revenue, vide Ext. D series and existence of dispute regarding possession vide Ext. F would clearly show that they were in possession of the suit land under all probability in or around 13.8.1962. P.W. 12 has more or less given sufficient evidence to that effect stating that the Defendants were in possession since the year 1967. Plaintiff allegedly purchased the suit land on 20.2.70 and instituted this on 3.8.78. Therefore, the bar of limitation of 12 years against a claim of adverse possession will over the period upto or around 1966. PW2 has clearly stated that the Defendants were in possession in or around the year 1966-67. In addition to these facts we have further evidence or dispute regarding possession as back as in the year 1962. Therefore, I find that the interest of the vendor of the Plaintiff even if on the strength of the execution of decree has since been extinguishes by operation of law of limitation and there is no fresh cause of action in favour of the present Plaintiffs as licensees. Plaintiff has miserably failed to adduce any legal evidence to show that since his purchase in the year 1970 he inducted the predecessor - in - interest of the Defendants as a licensee.
As already quoted above, this Court in Second Appeal No. 70 of 1985 has upheld the above findings as regards adverse possession. The Respondent opposite party is merely trying to camouflage and confuse the issue by raising the question of identity of disputed land. The criminal Court was undoubtedly bound by the finding recorded by the Court. If despite judgment and decree of this Court there was any apprehension of breach of peace, the proper course for the police in the instant case was to take recourse to Section 107 Code of Criminal Procedure rather than Sections 145 and 146. The Respondent opposite party should have been called upon to execute a bond with or without surities for keeping peace. Having lost in their case before the highest Court of the State, they should not take the law in their hands and causing breach of peace. As has been pointed out in umpteen cases that initiation of proceeding u/s 145 Code of Criminal Procedure is not justified once the Court issue injunction restraining one from entering with possession of other party see Ram Krishan Dass Vs. Rameshwar Dass and Another,
The learned Magistrate was palpably wrong in ignoring the findings- recorded by the civil Court and passing the impugned order dated 17.6.96 and 19.9.96. The orders are liable to be quashed and accordingly quashed. The revision petition stands allowed.