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2003 (2) Crimes 393
Rajasthan High Court
H.R. Panwar, J.
Narayani Devi —Petitioner
versus
State of Rajasthan & Anr.—Respondents
S.B. Criminal Misc. Petition No.
467/1996
Decided on 29-10-2002
Counsel for the parties:
For the Petitioner:Mr. M.L. Garg, Advocate.
For the State : Mr. Gopi Kishan Vyas, P.P.
For the Non-petitioner No. 2:Mr. S.L. Jain, Advocate.
Important Point
In normal course when order of appointment of receiver issued in under Section 125 Cr.P.C. execution procee-dings is set aside or withdrawn without determination of rights of parties then person entitled to restoration of posse-ssion would be the person from whom possession was taken over by receiver.
Headnote:Criminal Procedure Code, 1973 — Section 482 — Order granting maintenance in favour of wife of non-petitioner No. 2 under Section 125 Cr.P.C. — In execution of order trial Court attached the land recorded in name of father of non-petitioner No. 2 despite objection by non-petitioner No. 2 that land had been given by his father to petitioner, his niece for her maintenance — Death of wife of non-petitioner and trial Court released attached land in favour of petitioner — Non-petitioner No. 2 filed revision and revisional Court set aside order of Magistrate directed release of land in favour of non-petitioner holding that he was the only surviving son of his father after his death — Legality — Petitioner had been in possession of land for last 30 years and was recorded its cultivator in revenue record — Non-petitioner No. 2 himself in affidavit stated that petitioner was owner in possession of land when it was sought to be attached — Revisional Court had limited jurisdiction but it went on as if it was deciding title and exceeded its limits — Impugned order was liable to be set-aside. (Paras 8 to 10)
Result: Petition allowed.
Order
H.R. Panwar, J.— This criminal miscellaneous petition under Section 482 Cr. P.C. is directed against the order dated 29th June, 1996 passed by Additional Sessions Judge No. 1, Sri Ganganagar (hereinafter referred to as ‘the revisional court’) whereby the revisional court allowed the revision petition filed by non-petitioner No. 2 Hanuman Prasad against the order dated 21st July, 1994 passed by Civil Judge (Junior Division) and Judicial Magistrate, Sri Ganganagar (hereinafter referred to as ‘the trial court’) whereby the trial court allowed the application filed by Petitioner Narayani Devi seeking restoration of possession of land in dispute.
2. Briefly stated facts to the extent they are relevant and necessary for the decision of this criminal mis-cellaneous petition are that Smt. Gayatri Devi, wife of non-petitioner No. 2 Hanuman Prasad filed an application against her husband non-petitioner No. 2 under Section 125 Cr. P.C. seeking maintenance. The trial court allowed the application for maintenance at the rate of Rs. 300/- per month in favour of Gayatri Devi. Non-petitioner No. 2 Hanuman Prasad failed to pay the maintenance and in order to execute the order of maintenance the trial court attached the land recorded in the name of Hiralal father of non-petitioner No. 2 Hanuman Prasad measuring 23 bighas. Hanuman Prasad denied title to the land in the said proceedings and came out with the case that the land sought to be attached was given to petitioner Narayani Devi by Hiralal for her maintenance soon after the allotment was made in favour of Hiralal and, therefore, it was stated that Narayani Devi is cultivating and in possession of the land by grant. Non-petitioner No. 2 denied the possession and title to the land in question. However, the land in question was attached by the order of the trial court and a receiver was appointed. Thus, the land in question came in custody of receiver. During the pendency of the application under Section 125 Cr. P.C., Smt. Gayatri Devi expired and the proceeding under Section 125 Cr. P.C. came to an end. The possession of land in question was sought to be restored to the person from whom the receiver took the possession. An application was filed by the peti-tioner before the trial court seeking direction to receiver Tahsildar Rawatsar to restore the possession of the land in her favour. Non-petitioner No. 2 Hanuman Prasad contested the said application. By impugned order dated 21st July, 1994, the trial court allowed the application filed by the petitioner and directed that the possession of the land attached shall be delivered to the petitioner.
3. Aggrieved by the order of the trial court non-petitioner No. 2 Hanu-man Prasad filed a Criminal Revision Petition No. 36 of 1994 before the revi-sional court. By order impugned dated 29th June, 1996, the revisional court allowed the application filed by non-petitioner No. 2 and set aside the order of the trial court dated 21st July, 1994 and directed to hand-over the posse-ssion of the land in question to non-petitioner No. 2 Hanuman Prasad. Aggrieved by the order of the revisional court, the petitioner has filed the present criminal miscellaneous petition.
4. I have heard learned counsel for the parties. Perused the order of the trial court as well as of the revisional court and the record of the case.
5. It is contended by learned counsel for the petitioner that originally land in question was allotted to Hiralal. The said land was given to the petitioner by Hiralal in the year 1971 for her maintenance as the petitioner is niece of Hiralal. This fact has amply been established from the record of the trial court., inasmuch as non-petitioner No. 2 himself admitted this fact in the reply filed before the trial court in mainte-nance proceedings. It was further contended that non-petitioner No. 2 filed an affidavit before the trial court wherein he deposed on oath that the land in question was allotted to Hiralal and after allotment, he had giv
