S.M.Rizvi vs Ajab Khan and Others

This criminal reference has been made by the learned Sessions Judge, Kupwara, seeking quashment of the order dated 2221985, passed by the

learned Assistant Commissioner Executive Magistrate First Class, Kupwara, whereby in the proceedings u/s 145 of the Cr. P. C. he has held the

respondents to be in possession of the disputed walnut trees and directed the ""superdar"" to hand over the possession thereof to them.

It appears that in May 1981, on the application filed by the respondents, proceedings under section 145 of the Cr. P. G. were initiated by the

learned Assistant Commissioner, Executive Magistrate Kupwara in respect of the possession of the disputed walnut trees. He also attached the

said trees and appointed a Superdar for them. At the conclusion of the inquiry, he held the respondents herein (Applicants before him) to be in

possession of the disputed trees and directed the. superdar to hand over possession of the trees to them.

Aggrieved the petitioners filed a revision against the said order of the Magistrate. The learned Sessions Judge is of the opinion that the said

Executive Magistrate had no jurisdiction to initiate the proceedings under Section 145 Cr. P. C. in respect of the disputed trees. According to him

the trees in dispute formed an orchard which falls outside the purview of the provisions of the Agrarian Reforms Act. He has also held that the

notice in terms of Sub Section (3) of Section 145 Cr. P. C. has not been served properly. The learned Sessions Judge has not however found any

fault with the appreciation of evidence as done by the learned Magistrate Consequently he has recommended that the impugned order of the

learned Magistrate may be set aside.

I have heard the learned counsel for the parties. The record was also examined. From the perusal of record it was noticed that as far back as on

2961963 a decree for perpetual injunction was passed in favour of the respondents herein and against the petitioners in respect of the disputed

walnut trees. The question therefore arises that if a party has established his right in a civil court and obtained delivery of possession is the dispute

to be regarded as an end. Some earlier cases answered it affirmatively and held that in such a case the rule is though there may be exception that it

is the duty of the Criminal Court to maintain the rights of the party who got civil court decree or order without deciding again the question of

possession. These cases proceeded on the principle that once the Civil Court declared the rights of the parties the dispute was at an end and the

defeated party could not be allowed to go to the Criminal Court to neutralise the effect of the decree. On the other hand a later group of cases

took the view that possession under Section 145 has to be decided not on the basis of the right to possess but the Magistrate is to find who is in

actual possession notwithstanding Civil Court decree or order in One's favour.

There has been a mass of decision on the subject but they are not all agreed. The true position is that decrees or orders of Civil Courts relating

to possession ought ordinarily to be respected and given effect to by the Magistrate unless and untill there is something shown which might induce

him to hold that subsequent to the delivery of possession something has happened which had the effect of dispossessing the party to whom

possession was delivered.

In the present case admittedly a civil court decree is in favour of the respondents whether they continued to be in possession of the disputed

property till the preliminary order was passed by the Magistrate was the main question to be determined by him. As the very jurisdiction of the

Inquiry Magistrate has been challenged in this case therefore that question is to be answered first. Otherwise also the learned Magistrate appears

not to have conducted the proceedings of the case properly. As a matter of fact he had dropped the proceedings under Sub Section (5) of Section

145 of the Cr. P. C. According to him there was no apprehension of breach of peace any more on spot and therefore he ordered that the

possession of the disputed trees be given to the respondents who according to him were entitled to it. If the Magistrate was really of such opinion

then he had no business to go into the merits of the case. He has first appreciated the evidence of the case and then found that there was no

apprehension of breach of peace on the spot. He has got indicated as to how he found that there was no apprehension of breach of peace. He

appears to have lost sight of the fact that the said apprehension was averted due to attachment of the disputed property if there was such

apprehension on the day when the preliminary order was passed then unless contrary was established before him he had to presume that it did

exist on the spot.

The learned Sessions Judge has not gone into this aspect of the case or it might have escaped his notice. There is nothing said about it in the

order of reference.

Now, as regards the jurisdiction of the learned Executive Magistrate to initiate proceedings Under Section 145 Cr. P. C in respect of the disputed

tree. I think the learned Sessions Judge has rightly held that the disputed property being as an orchard, it fell outside the purview of the Agrarian

Reforms Act. The Executive Magistrate has the power to initiate such proceedings only in respect of land as defined in the said Act In respect of

all other immovable properties it is only the Judicial Magistrate who has such power. Under the Agrarian Reforms Act orchard has been defined,

as under:

Orchard means a compact area of land having fruit trees growing thereon or devoted to cultivation of fruit trees in such number that the main use

of which the land is put in growing the fruits or fruit trees.

In the instant case the subject matter of dispute is walnut trees which are, admittedly fruit bearing trees. The land underneath the trees has been

shown as ""banjar Kadim"" in the revenue record, which means, the said land is not put to any agricultural use. That being so the result is inescapable

that the disputed land is a compact area of land having fruit growing trees thereon.

In these circumstances I agree with the finding of the learned Sessions Judge that then disputed trees being in the shape of an orchard the

Inquiring Executive Magistrate had no power to initiate the proceedings under Section 145 of the Cr. P. C. Such proceedings in respect of the

orchard could be initiated only by a Judicial Magistrate. The reference is answered accordingly.

The result is that the reference is accepted and the impugned order of the learned Assistant Commissioner Executive Magistrate First Class

Kupwara dated: 2221985 is hereby quashed. However in the peculiar circumstances of the case and in view of the fact that a civil court decree, is

already in favour of respondents, and more so to avoid breaking of heads by the parties on the spot and to do away with the breach of peace. I

invoke my inherent powers under section 561A of the Cr. P. C. to prevent abuse of the process of court and to secure the ends of justice and

hereby direct that the possession of the disputed walnut trees shall remain with the superdar concerned for four weeks from today or till the actual

possession thereof is determined by any competent court of law or any orders in this regard are passed by any such court whichever is earlier. Let

the aggrieved party approach any proper forum as may by available to him under law.

The reference is disposed of accordingly. The file be consigned to records. The record shall be remitted back to the concerned courts below.