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2009(4) Supreme 803
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Bharat Prasad & Ors. — Appellant(s)
versus
The State of Bihar & Ors. — Respondent(s)
Criminal Appeal No. 952 of 2009
(@ Special Leave Petition (Criminal) No. 5981 of 2007)
Decided on : 06-05-2009
1993 Supp. (2) SCC 347; (1987)3 SCC 340; (1981) 1 SCC 107; (2006) 11 SCC 66 – Relied upon.
(b) Bihar Tenancy Act, 1885 – Section 48E r/w sections 14 and 145, Cr. P.C. – Proceedings and adjudication u/s 48E having become final provisions of the Code cannot be pressed into service. (Para 29)
(c) Bihar Tenancy Act, 1885 – Section 49C – Transfer by under-raiyats being barred, any such transfer would be void. (Para 30)
Facts of the case :
1. The order dated 10.2.2005 passed by 3rd Additional Sessions Judge, Motihari in Cr. Revision No. 326 of 1992 whereby the order dated 27.7.1992 passed by the Executive Magistrate, Raxaul in case No.548(M) of 1991 was sought to be quashed.
2. The High Court refused to quash the same and confirmed it.
Finding of the Court :
High Court failed to appreciate impact of the Bihar Tenancy Act and the Cr. P.C.
Result : Appeal allowed.
JUDGMENT
Asok Kumar Ganguly, J.—
1. Leave granted.
2. The order of the High Court dated 23.5.2007, passed under Section 482 of the Code of Criminal Procedure is impugned before this Court.
3. By that order, the High Court refused to quash the order dated 10.2.2005 passed by 3rd Additional Sessions Judge, Motihari in Cr.Revision No. 326 of 1992 whereby the order dated 27.7.1992 passed by the Executive Magistrate, Raxaul in case No.548(M) of 1991 was confirmed.
4. By the said order dated 27.7.1992, the Executive Magistrate declared possession in favour of the opposite parties in a proceeding under Section 145 of the Code. The relevant portion of the order is:-
“I declare the possession of the first side on the said land until and unless they are dispossessed by the competent Court and the opposite side is ordered that they shall not interfere in the peaceful possession of the first side”.
5. The material facts of the case are as under:
6. The land in question is 1 Katha 8 dhura out of plot No. 1853 under Khata No. 289 in village Gambharia Kala, P.S. Darpa, District Motihari.
The land originally belonged to one Ram Lagan Tiwari of village Amnaur of District Chapra.
7. The case of the appellants is that one Ram Lagan Tiwari mortgaged the said land to one Jagdish Prasad Singh son of Tapasi Rai of village Bhopatpur Bajhia, P.S. Keshariya, District East Champaran on 21.7.1920 for a period of 60 years.
8. It is further contended that some time on or about 9.11.1943, Ram Lagan Tiwari sold the land to one Jamadar Rai @ Jamadar Bhagat of Village- Lahadia, P.S. Darpa, District East Champaran by a registered sale deed. Neither Jamadar Rai @ Jamadar Bhagat nor Ram Lagan Tiwari redeemed the mortgage and as a result whereof Jagdish Prasad Singh continued in the possession over the disputed land. The said Jagdish Prasad Singh, the mortgagee gave the said agricultural land to the appellants and his brothers to cultivate as Bataidars.
9. The appellant contends that he along with Jai Bihar Sah took possession of the said and cultivated it as Bataidar.
10. It is further contended that on 18.8.1977, the said Jagdish Prasad Singh tried to dispossess the appellants and Jai Bihar Sah from the Batai Land whereupon the appellant No.2 - Lakshman Prasad filed Sikmi Batai Case No. 480 of 1975 and Jai Bihar Sah filed Sikmi Batai Case No.257 of 1976 before the L.R.D.C. Both the Sikmi Batai Cases were decided against Jagdish Prasad Singh and in favour of the appellants.
11. The concluding portion of the said order as follows:
“ ....From the statements of different persons and inquiry report it has become undisputed that Sri Lakshman Prasad Sah, Batayidaar along with his family members had been cultivating this land for more than 30 years as batayidaar and distribute the share of the crops to Sri Jagdish Prasad Sah the remaining 1 bigha of land but till today 2 bighas and 2 katthas of land are in his peaceful possession and legally Sri Lakshman Prasad Sah has got Sikri right over the 2 bigha and 2 katthas of land which is equivalent to acre and decimel...”.
12. Against the said order no appeal was preferred. The said order has become final.
13. It is also the appellants’ case that then Lakshman Prasad and his two brothers, namely, Ram Chandra Prasad and Bharat Prasad separated from each other and partitioned the entire land including the land in question among themselves.
14. It is alleged that then on 26.6.1979, Vendee of the original landlord Ram Lagan Tiwari, i.e. Jamadar Rai @ Jamadar Bhagat sold the entire land in favour of Dharaman Prasad and his three sons, namely, Shesh Nath Prasad, Pramod Kumar and Binay Kumar by a registered sale deed on 26.6.1979.
15. It is alleged that on 26.12.1981, Laxman Prasad executed one “Ezabnama” for Sikmi Batai in favour of Dharaman Prasad and his sons.
16. Thereafter, a proceeding under Section 144 of the Code was initiated and the Sarpanch of Gamhari Kala Panchyat recommended initiation of such proceeding only on 2 Bigha
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