Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Raj) 1186

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Arun Madan, J.
State of Rajasthan - Appellant
Versus
Jagan Singh & Ors. - Respondent
S.B.Cri. Revision Petition No. 294 of 1999.
Decided On : 20-05-1999

Advocates:
For the Petitioner:Mr. K.S. Rathore, Additional Advocate General with Mr. N.L. Pareek, Advocate.
For the Respondent No. 1.:Mr. N.A. Naqvi, Advocate.
For the Respondent Nos. 2 and 3.:Mr. N.C. Choudhary, Advocate.

The legality of an order passed under Section 146(2) Criminal Procedure Code is subject to the proper determination as regards the factum of possession over the land in question, which exercise should have been carried out by the learned Magistrate at first instance particularly when the dispute was likely to endanger breach for adjudication as per section 145 Criminal Procedure Code on the basis of the complaint filed by SHO P.S. Kotwali, Sikar.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 146(2) - REVISION - POSSESSION OF DISPUTED LAND - APPOINTMENT OF RECEIVER - LEGALITY - FACTUM OF POSSESSION - DETERMINATION - PROCEDURE - REVISION COURT'S JURISDICTION - LIMITS.
Fact of the Case:

The petitioner-State challenged the sustainability of the impugned order dated 5.2.1999 passed by the Additional Sessions Judge No. 1 Sikar, which set aside the order dated 17.11.1995 of the Sub Divisional Magistrate Sikar, who had appointed the SHO Kotwali, Sikar to act as Receiver in the matter by directing the attachment of the land in question till the matter is decided by the competent court.
Finding of the Court:

1. The land in question was recorded in the khatedari of different persons, while khatedari rights as per Section 19 of the Rajasthan Tenancy Act (Act No. 3 of 1955) were conferred earlier upon Chhotey Lal Meena (the then original Khatedar) only as regards 7 Bighas of land forming part of the aforesaid khasra numbers. 2. Chhotey Lal Meena is purported to have transferred the land in question in favor of respondent No. 1 Jagan Singh through a registered sale-deed dated 15.9.1961. 3. The Revenue Appellate Authority Sikar, vide its order dated 8.4.1993, directed vesting of land in question in State Government. 4. The Board of Revenue Ajmer vide its orders dated 22.1.1990 as well as 6.3.1992 accepted the References made by the Collector Sikar under Section 82 of the Land Revenue Act and observed that right of opening a Mutation under Section 19 of the Act vests only with the Assistant Collector and not with Tehsildar. 5. The SDM Sikar vide his order dated 17.11.1995 appointed SHO P.S.Kotwali Sikar to act as Receiver over the land in dispute as per the requirements of Section 146(2) Criminal Procedure Code. 6. The Additional Sessions Judge No. 1, Sikar vide its order dated 5.2.1999 allowed the revision quashing and setting aside the order dated 17.11.1995 of the SDM Sikar consequent upon which, the complaint filed before the said authority for attachment of the property in question under Section 146(2) Criminal Procedure Code by SHO P.S. Kotwali, Sikar stood dismissed with a direction to restore the possession of the land in dispute to Jagan Singh forthwith.
Issues: 1. Whether the impugned order dated 5.2.1999 passed by the Additional Sessions Judge No. 1 Sikar, which set aside the order dated 17.11.1995 of the Sub Divisional Magistrate Sikar, is sustainable? 2. Whether the SDM Sikar was justified in appointing the SHO Kotwali, Sikar to act as Receiver in the matter by directing the attachment of the land in question till the matter is decided by the competent court?
Ratio Decidendi: 1. The land in question has already been vested in State by the orders of appropriate authorities and respondent No. 1 is consequently a trespasser and is not entitled to protect his possession as against the true and lawful owner viz., the State in which the land already stood vested. 2. The Board of Revenue has observed that the provisions of Section 19 of the Act do not authorize Tehsildar with the powers to confer any Khatedari rights and nor the Tehsildar is empowered to make Mutation in favor of a person in such a manner as has been done in the instant case while opening Mutation No. 92 dated 1.8.1960 in favor of Chhotey Lal Meena whereas the powers to confer the Khatedari rights vests with the Assistant Collector under the provisions of Section 19 of the Act. 3. The Mutation over the land in question are recorded in favor of the State, respondent No. 1 has no legal right vested in him to retain the possession of the land in dispute. 4. The learned Revisional Court has failed to take notice of the relevant background in the context viz., the order of attachment dated 17.11.1995 which was passed by the SDM Sikar by directing appointment of Receiver pending adjudication by the competent court. 5. The learned SDM Sikar had not made any proper enquiry regarding factum of possession of the land in question before directing attachment proceedings since the land in question having been already stood vested with the State and the possession of the land was taken over by the State way back on 21.8.1995, 8.11.1995 as well as 27.5.1997.
Final Decision: The revision petition of the State is allowed. The impugned-order dated 5.2.1999 passed by the learned Additional Sessions Judge No. 1, Sikar in Criminal Revision No. 2/96 as well as the order dated 17.11.1995 passed by learned SDM Sikar in Case No. 27/95 are quashed and set-aside.

JUDGMENT

1. - The petitioner - State has by way of the instant revision petition challenged the sustainability of the impugned-order dated 5.2.1999 of learned Additional Sessions Judge No. 1 Sikar passed in Cr.Revision No. 2/96 whereby, the. said revisional court while allowing the revision preferred by Jagan Singh (respondent No. 1 herein) set-aside the order dated 17.11.1995 of Sub Divisional Magistrate Sikar who had by the said impugned-order appointed the SHO Kotwali, Sikar to act as Receiver in the matter by directing the attachment of the land in question till the matter is decided by the competent court. The u/s.397 read with 401, Criminal Procedure Code against judgment of Miss Chandrakala Yadav, Addl. Sessions Judge No. 1, Sikar dated 5.2.99 passed in Cr. Rev. Pet. No. 2./96 restoring the possession of disputed land to Jagan Singh (resp. No. 1 herein). learned Sessions Judge had directed that possession of the disputed land be restored to respondent No. 1 Jagan Singh and compliance report be submitted to the said court within one week w.e.f. the date of the order dated 5.2.1999.

2. The facts which are relevant for deciding the controversy between the parties briefly stated are that the land in question comprising of Khasra Nos. 378, 318 and 379 measuring 11 Bighas and 17 Biwas situated in Sikar were recorded in khatedari of different persons while khatedari rights as per Section 19 of the Rajasthan Tenancy Act (Act No. 3 of 1955) for short "the Act" were conferred earlier upon Chhotey Lal Meena (the then original Khatedar) only as regards 7 Bighas of land forming part of the aforesaid khasra numbers. This fact is borne out from Jamabandi from Samvat 2011-2014 and from Samvat 2014-2017 on the record. It is pertinent to mention that Act of 1955 came into force w.e.f. 15.10.1955 vide Gazette Notification dated 24.3.1955. Section 19 of the Act deals with conferment of rights on certain tenants of Khudkasht and sub-tenants whose names were duly entered in the annual registers then in force as a tenant of Khudkasht or sub-tenant of landlord other than grove land or if it was not so entered but as tenant of Khudkasht or sub-tenant of land, other than the grove land shall, as from the date of commencement of the Amending Act of 1959 subject to other provisions contained in the Act, the Khatedar tenant of such part of the land held by him as do not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of Section 180 or if it exceeds the maximum area from which such person is liable to ejectment under clause (d) of sub-section (1) of Section 11 of the Act and rights in improvements in that part of the land shall also accrue to such person.

3. Chhotey Lal Meena, (the then original Khatedar) is purported to have transferred the land in question in favour of respondent No. 1 Jagan Singh through a registered sale-deed dated 15.9.1961. Thereafter, he filed a suit on 26.7.1963 before the Civil Court for cancellation of the sale-deed dated 15.9.1961 which was decreed by the trial Court and appeal filed by respondent No. 1 Jagan Singh was also dismissed by the Appellate Court maintaining the order of the trial Court. Being aggrieved against the order of the Appellate Court, Jagan Singh (respondent No. 1 herein) filed a second appeal before this Court bearing S.B.Civil Second Appeal No. 392/70 which was allowed by this Court vide order dated 4.9.73 and the plaintiff (Chhotey Lal Meena) was directed to file a fresh suit before the competent revenue court holding that since the said suit was exclusively triable by the revenue court, it was consequently directed that the trial court shall return the plaint to the plaintiff for its presentation to the competent revenue court. Consequently, the plaintiff Chhotey Lal Meena filed the suit before the revenue court viz. the Sub Divisional Officer, Sikar on 14.12.1974. Thereafter, Chhotey Lal Meena died on 4.2.1975 and his wife Smt. Bhagwani wa

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1999 Supreme(Raj) 1186

RAJASTHAN HIGH COURT AT JAIPUR BENCHArun Madan, J.State of Rajasthan - AppellantVersusJagan Singh & Ors. - RespondentS.B.Cri. Revision Petition No. 294 of 1999.Decided On : 20-05-1999

Cases Referred (2)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Arun Madan, J.
State of Rajasthan - Appellant
Versus
Jagan Singh & Ors. - Respondent
S.B.Cri. Revision Petition No. 294 of 1999.
Decided On : 20-05-1999