Shambhu Bhokta @ Shambhu Nath Bhokta vs State Of Jharkhand

Pradeep Kumar Srivastava, J

Heard learned counsel for the parties.

The instant criminal revision is directed against the order dated 16.02.2010 passed by learned Sessions Judge, Deoghar in Criminal Revision No. 151 of 2005, whereby the order passed by the learned Executive Magistrate dated 06.10.2005 in a proceeding under Section 145 of the Cr.P.C. declaring the possession of the petitioners (Second Party) in Misc. Case No. 11/2005 has been set aside and revision was allowed.

Factual matrix giving rise to this revision arises out of proceeding initiated under Section 144 of the Cr.P.C. on 07.09.1983 on the basis of non-FIR Report No. 37 of 1983 of Palajori P.S., whereby learned SDM restricted both the parties from going over the land in proceeding with a view to prevent the eminent breach of peace due to land dispute between the parties pertaining to Dag No. 476, Area – 13 Acres 36 decimals situated in Mouza – Dhiba, P.S. –Sarath, District – Deoghar. Later on, the proceeding was converted into proceeding under Section 145 of the Cr.P.C. vide order dated 31.10.1983 and notices were issued to the parties. Both the parties have filed their respective show cause reply and also adduced evidence showing their respective possession over the land under proceeding.

Learned Executive Magistrate having considered rival contentions of the parties and the evidence of witnesses and other materials produced before him found the evidence of second party members to be reliable and free from doubt and also arrived at conclusion that at the time of initiation of proceeding second party members (petitioners) were in actual possession under land in proceeding. Accordingly, declared their possession and passed a restrictive order against first party member to go over the disputed land or create any disturbance in the possession of the second party members unless any other order is passed by any court of competent jurisdiction.

The above order passed by the learned SDM dated 06.10.2005 was assailed in Criminal Revision No. 151 of 2005 before the learned Sessions Judge, Deoghar. The learned Sessions Judge, Deoghar, after close scrutiny of evidences adduced by the parties both oral as well as documentary arrived at conclusion that the land under proceeding was undoubtedly settled by Sub Divisional Officer, followed by delivery of possession in favour of members of first party (revisionist) and for the occurrence of murder on the very plot, the members of second party were tried and finally convicted. The factum of actual possession over the land at the time of initiation of proceeding till the passing of the order, was of the first party members. The documentary evidence adduced by the first party was wrongly disbelieved and not admitted in evidence. Hence, the learned SDM committed gross error of record and the basis of claim of second party members relying upon some documents having Pradhani right over the land under dispute since the time of their ancestors, can only be decided by a Civil Court of competent jurisdiction. Accordingly, the impugned order was set aside by the revisional court with observation that it is left open for both the parties to seek redressal in respect of their right, title and interest before a competent civil court in exercise of its civil jurisdiction without being prejudiced by this order. Accordingly, revision was allowed on contest, which has been assailed in this revision filed before the High Court.

Learned counsel for the petitioners has submitted that the learned revisional court has committed grave error of law entering into re-appreciation of evidence and subjective findings arrived at by the learned SDM. The opposite parties also admit possession of present petitioner, but no civil suit was filed to substantiate their right and possession. Hence, impugned order is not justified under law and liable to be set aside by allowing this revision.

On the other hand, learned APP appearing for the State as well as learned counsel for the opposite parties have vehemently opposed the aforesaid contentions raised on behalf of the petitioners and submitted that in a proceeding under Section 145 of the Cr.P.C., the Magistrate has to record subjective findings regarding actual physical possession during the proceeding initiated under Section 145 of the Cr.P.C. of either of the parties. It cannot go into deciding the title of the parties or any findings arrived at on the basis of claim of title, which is within the ambit and scope of civil court of competent jurisdiction only. The learned Sessions Judge, in order to arrive at right conclusion and in order to ascertain, whether the learned SDM acted within the mandate of law or not has appraised the evidence adduced by the parties and rightly allowed the revision setting aside the impugned order passed by the learned SDM. The petitioners have not claimed their right, title and possession before the competent civil court as yet, therefore, there is no illegality or infirmity in impugned order, calling for any interference, by way of this revision, which is fit to be dismissed.

I have gone through the record of the case and perused the impugned orders passed by the learned SDM as well as learned Sessions Judge in Criminal Revision. Admittedly, the proceeding regarding dispute of possession between the parties regarding land under proceeding was initiated in the year 1983, which was concluded in the year 2005 and finally the revisional order by learned Sessions Judge was passed in the year 2010 and since the year 2010, present criminal revision is also pending. Nearly, 40 years have passed, but none of the parties ever bother to take recourse of competent court of civil jurisdiction to get their right, title interest to be declared and confirmation of possession over the disputed land. It is settled law that a proceeding under Section 145 Cr.P.C. is meant for preservation of peace and tranquility. An order passed under Section 145 of the Cr.P.C. deals only with factum of possession of party as on particular date. It confers no title to remain in possession of the disputed property. The order is subject to decision of civil court. The party, therefore, must get relief only in the Civil Court. He may move the civil court with properly instituted suit. He may file suit for declaration and proof of better right to possess. The Civil Court has jurisdiction to give finding different from which the Magistrate has reached. Thus, the parties cannot be permitted to litigate before the Criminal Court, where without proper remedy lies before the competent court of civil jurisdiction.

In the above-mentioned facts and circumstances, I do not find any reasonable ground to take different view and interfere with the impugned order. The parties are at liberty to take recourse of the civil court with a properly instituted suit which shall be decided without being prejudiced by this judgment and the observations made hereinabove.

Accordingly, this revision is dismissed.

Let a copy of this judgment along with trial court record be sent to the court concerned for information and needful.