Ram Kishan vs State of Punjab and anr.

S.D. Bajaj, J.

Des Raj owner of 18 Kanals 17 Marlas of land comprised in Khasra Nos. 100/1, 11/31 (316), 101115 (80) and 957/2 (317) and 95/26 (34) situated in village Duan Kalan tehsil and district. Patiala died on September 4, 1982. After his death both petitioner as also respondent No. 2 set up rival Wills allegedly executed by the deceased in his favour to the exclusion of the other. Registered Will set up by respondent No. 2 is dated May 25, 1981 while the one set up by the petitioner is dated July 4, 1982. On the basis of registered Will dated May 25, 1981 mutation of entire estate left by Des Raj deceased was attested in favour of respondent No. 2 by the revenue authorities on May 25, 1983. Appeal filed by the petitioner against the attestation of this mutation was dismissed by the Collector, Patiala, on October 28, 1983.

2 Present petitioner, alleging himself to be in possession of 7 Kanals 1 Marlas out of the disputed land, comprised in Khasra No. 7/2 (317) and 26 (34) of rectangle No. 35 filed against respondent No. 2 on November 8, 1983 a civil suit for permanent injunction restraining him for dispossessing the petitioner of it and in respect of the remaining I I Kanals 16 Marlas of land asked for a declaration of title, both on the basis of inheritance as 6th degree collateral as also Will dated July 4, 1982 and consequential relief by way of permanent injunction restraining respondent No. 2 from alienating it during the pendency of the suit. Exparte ad interim injunction was granted to the petitioner on November 10, 1983 and confirmed on September 19, 1984. The civil suit is, however, still pending.

Correctness of Khasra Girdawari entries on the basis of which exparte adinterim injunction order dated November, 10, 1983 was based or confirmed on September 29, 1964 by the civil court was challanged by respondent No. 2 before the learned Subordinate Judge Ist Class, Patiala, in his suit filed, under section 145 of the Punjab Land Revenue Act, The suit was decreed on July 20, 1985 and the appeal filed by the petitioner against it was dismissed by the learned Additional District Judge, Patiala on August 10, 1987. R.S.A. No. 2963 of 1987 filed by the petitioner in respect of it has been admitted and is still pending in this court for disposal.

In the background aforesaid ASI Ajmer Singh of Police Station Sadar Patiala, reported to the learned Executive Magistrate on August 17, 1937 that there was a dispute regarding possession over the land in dispute between the two parties who were determined to enter into actual physical possession thereof, by force and, therefore action under section 145 Cr.P.C. may be initiated in respect of it and till decision in the matter is reached, orders may be issued to appoint a receiver. Learned Executive Magistrate took cognizance of the matter on July 27, 1987 and made the order Annexure P. 3 on September 28, 1987, attaching the land in dispute and appointed Naib Tehsildar, Patiala as Receiver in terms of section 146 Cr.PC. Revision filed by the petitioner against the order of attachment and appointment of Receiver dated September 28, 1987 was dismissed by the learned Additional District Judge, Patiala, on May 20, 1988. Hence Criminal Misc. No. 3498M or 1988 in this Court for quashing the orders dated July 27, 1987, September 28, 1987 of learned Executive Magistrate and impugned order dated May 20, 1988 of the learned Additional Session Judge.

I have heard Shri R. L. Batta, learned counsel for the petitioner, Shri Hemant Gupta, Advocate, for respondent No. 2 S.S. Sahi Advocate, for respondent No. 1 and have carefully gone through the relevant record.

It has been urged on behalf of the petitioner with reference to the observations made in Pritam Singh alias Pritam Dass and others v. State of Punjab and another, 1985(2) Chandigarh Law Reporter 689, Kanwar Pal Bishnoi v. The Additional Sessions Judge and others, 1986(2) Chandigarh Law Reporter 562 that adinterim injunction having teen granted to him by the civil court on November 10, 1983 and confirmed on September 29, 1984 regarding the suit land, initiation of parallel proceedings under section 145 Cr.P.C. in respect of it by the learned Executive Magistrate is obviously illegal and merits to be quashed. Consequent orders under section 146 (i) regarding attachment of the disputed lands are also illegal and are, therefore, to be quashed and that the learned Sessions Judge, Patiala erred in law while declining to set them aside in exercise of his revisional jurisdiction.

The argument is wholly without merit and the authorities cited are inapplicable to the facts and circumstances of the present case. In this case, as narrated earlier both the rival contenders claim to have entered into possession after the death of the deceased ownerin possession Des Raj, who died on September 4. 1982. Present, petitioner on November 8, 1983 asserted in the plaint of civil suit filed by him(copy Annexure P.1) that he was in possession of 7 Kanals I Marlas only out of the disputed land measuring 18 Kanals 17 Marlas. Khasra Girdawari entries as also the report made by the Local Commissioner in his favour in respect of it having been negatived by the civil court on July, 20, 1985 in the suit filed by respondent No. 2 against him under section 45 of the Punjab Land Revenue Act and the decision having been confirmed by the learned Lower Appellate Court on August 10, 1987, primafacie the basis for the issuance of adinterim injunction in respect of a part of the disputed land by the learned Subordinate Judge on November 10, 1983 and confirmed on September 29, 1984 has been set at naught through a concurrent finding of fact arrived at by the learned two courts below. It can,. therefore, be reasonably inferred that there was obviously a dispute between the two parties regarding their possession over this land, as well. Regarding the remaining 11 Kanals 16 Marlas of the disputed land, the petitioner is non. suited by his own admissions made in the civil suit aforesaid on November 8, 1983.

Even otherwise also it has been held by the Supreme Court in R.H. Bhutani v. Miss Mani J. Desai and others, AIR 1968 Supreme Court 1444, the satisfaction under subsec. (1) of section 145 Cr.P.C. is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast, rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub section is clear and unambiguous that he can arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction,, would not go into the question of sufficiency of material which has satisfied the Magistrate." JUDGMENTs dated July 27, 1987 and September 28, 1987 of the learnedExecutive Magistrate cannot, therefore, be assailed on this score.

Learned counsel for the petitioner referred to the Supreme Court observations in Raj Kapoor and others v. State (Delhi Administration) and others, AIR 1980 Supreme Court 258 to contend that inspite of dismissal of his revision by the learned Additional Sessions Judge, Patiala, on May 20 1988 as not maintainable on procedural technicality, the present Criminal Misc No. 3498M. of 1988 still lies to this Court. This argument again is wholly without merit and the authority cited in support of it does not enure for the benefit of the petitioner because in the authority cited no revision had, in fact, been filed in the court of Sessions not had the learned court of Sessions disposed it of as in this case. In the circumstances as obtaining in this case it was ruled by the Supreme Court of India in Rajan Kumar Manchanda v. State of Karnataka, Judgments Today 1987(4) Supreme Court 637. The relevant observations read:

"The respondent State had challenged the order before the Court of Sessions when the learned Magistrate before whom the matter was proceeding directed release of the truck in favour of the appellant. The Revisional Court dismissed the petition of the State. A second Revision did not he at the instance of the State to the High Court in view of the provisions of section 397 (3) of Cr.P.C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under section 482 Cr.P.C. asking for exercise of inherent powers. In exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the Sessions Judge. The question for consideration is as to whether the bar under section 397 (3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken. The High Court in exercise of its, inherent power has to be sustained. it is not disputed by counsel appearing for the State, that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under section 397 (3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of section 397 (3) of the Code could be levelled as one under sec. 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision."

For the foregoing reasons Criminal Misc No. 3498M of 1988 is rendered wholly without merit and is accordingly dismissed.