Ram Chandra Singh vs State of Uttarakhand and others

Barin Ghosh, C.J.

(Delay Condonation Application No.10314 of 2011)

Considering the averments made in the application for condonation of delay in filing the appeal and being satisfied that sufficient grounds have been made out for delay, we allow the said application.

(Special Appeal No. 236 of 2011)

Respondent No.5 has been served and he has entered appearance through Mr. M.K. Goyal, Advocate. Mr. M.K. Goyal, however, has not appeared in Court today. Facts of the case, to which there appears to be no dispute, are that on 13th December, 2005, S.D.M. Rudrapur passed an order of attachment in exercise of his power under Sections 145 & 146 of the Code of Criminal Procedure. By reason of the said order of attachment, admittedly, possession of the land in question was taken away from the appellant. Aggrieved thereby the appellant went before the Sessions Judge by filing a criminal revision. The Sessions Judge, by his order dated 1st August, 2006 quashed the attachment order. By reason thereof, appellant became entitled to possession of the land in question. On 7th August, 2006, Supervisor Kanoongo handed over possession of the land to the appellant and recorded the said fact in an order dated 7th August, 2006. These facts are not in dispute. It appears that the learned Judge found from the record of the case, as was produced by the Tehsildar, that on 10th August, 2006 the order of the Kanoongo dated 7th August, 2006 was set aside by the Tehsildar. Against the order of the Sessions Judge, a criminal revision has been filed in this Court, wherein an order has been passed directing the parties to maintain status quo. There was interference in the enjoyment of the land in question by the appellant. He, accordingly, approached this Court by filing a writ petition. The said writ petition has been dismissed only on the ground that the Tehsildar, in person, informed the Court that in terms of the order of the Sessions Judge, possession of the land was not given to the appellant.

Factum of giving possession of the land to the appellant has been recorded in the order of Supervisor Kanoongo dated 7th August, 2006. Even if the order dated 7th August, 2006, where handing over of possession of the land to the appellant has been recorded, was set aside by the Tehsildar, as was done by his order dated 10th August, 2006, handing over of possession by the Supervisor Kanoongo, as recorded in his order dated 7th August, 2006, could, under no circumstances, be set aside. That being a physical action and not a mere paper work. Further, in any event, the Tehsildar on 10th August, 2006 could not pass any order contrary to the order passed by the Sessions Judge. Even if, on 10th August, 2006, the Tehsildar had passed an order, the same being contrary to the order of the Sessions Judge should be regarded as non est

We, accordingly, hold that in the facts and circumstances of the case, it must be deemed that on 23rd August, 2006, when an order was passed by this Court in the criminal revision, the appellant was in possession of the land in question.

We, accordingly, allow the appeal, set aside the judgment and order under appeal and allow the writ petition to the effect as above.

After we dictated the order, Mr. M.K. Goyal, learned counsel for respondent No.5 appeared and showed us certified copy of an application made in 2007 by the appellant before the Magistrate in connection with the selfsame matter, wherein he had stated that the land in question is not in his possession and the same is in possession of the revenue department. The fact remains that the said statement had to be made by the appellant in view of the action on the part of the Tehsildar, as disclosed above. The Tehsildar having had cancelled, though as aforesaid without any jurisdiction, the order of the Supervisor Kanoongo dated 7th August, 2006, Tehsildar is deemed to be in possession of the land in question without authority of law and in that background the appellant had no other option but to state what was the actual state of affair. We have pronounced that by reason of sequence of events, as depicted above, and the law applicable thereto, it is the appellant, who shall be deemed to be in possession of the land in question. In the event it is an inherited Bhumidhari land, it must be deemed that all the persons having interest in the land are in possession of the land in question. Therefore, for respondent No.5, if he has also inherited the land, it would be appropriate for him to take steps for having the land partitioned. In the event, a suit for partition is pending, it shall be open to respondent No.5 to approach the Court where the suit is pending for the purpose of establishing his undivided share in the land in question and to obtain such order, as he may be advised, for protecting his interest therein during the pendency of the suit. Until such time the suit is decided, he is restrained from taking recourse to approach the Tehsildar and make the Tehsildar act in the manner he has acted totally inconsistent with the law.