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2008 Supreme(All) 95
ALLAHABAD HIGH COURT
Dharam Veer
MAHANT ASHOK PRAPANNA SHARMA
Versus
STATE OF UTTARANCHAL
Decided On : 10 January 2008
Criminal Revision No. 97 of 2002
J.P.Joshi, L.K.TIWARI, M.A.KHAN,
The central legal point established in the judgment is the requirement to prove possession on the date of the preliminary order and prior to that date, as per the provisions of Section 145 (1) of the Cr. P. C., and the significance of documentary and oral evidence in establishing possession.
Headnote:
Cr. P. C. - Possession Dispute - 145 (1), 146 - The court discussed the possession dispute under Section 145 (1) and 146 of the Code of Criminal Procedure, 1973, and the legal provisions for deciding possession disputes. The court emphasized the importance of proving possession on the date of the preliminary order and prior to that date, and highlighted the significance of documentary and oral evidence in establishing possession.
Fact of the Case:
The case involved a possession dispute over a land in which the revisionist claimed ownership and possession, while the respondent asserted continuous possession for 25 years. The court analyzed the evidence presented by both parties to determine possession on the date of the preliminary order.
Finding of the Court:
The court found that the respondent was in possession of the disputed land on the date of the preliminary order and prior to that date, based on documentary and oral evidence. The court also noted that the revisionist failed to prove possession on the specified date.
Issues: The key issue was to determine possession of the disputed land on the date of the preliminary order and prior to that date, as per the provisions of Section 145 (1) of the Cr. P. C.
Ratio Decidendi: The court emphasized the importance of proving possession on the specified date and highlighted the significance of documentary and oral evidence in establishing possession. The court also considered the legal implications of a previous decree and its binding effect on the parties involved.
Final Decision: The court dismissed the criminal revision, affirming the judgment and order of the Sessions Judge, Tehri Garhwal, and vacated the interim order.
2. The case, in brief, is that the revisionist-Ashok Prapanna Sharma moved an application before the Execu tive Magistrate on 11-12-1989 with the prayer that he was in possession over the land in dispute and was also the owner of the said land and the respond ent No. 2-Mastan Singh was trying to take the possession over the said land in dispute forcibly. It was also stated that there were chances of breach of peace and he prayed for initiation of the proceedings u/s 145 Cr. P. C. and also prayed for the attachment of the said property u/s 146 Cr. P. C. On the said application, the learned Executive Mag istrate on the same day i. e. on 11-12-1989 directed the S. O. , Muni-ki-Reti to submit the report after the investigation. The S. O. Muni-ki-Reti on the same day i. e. 11-12-1989 submitted the report, on the basis of which the learned Executive Magistrate passed a preliminary order on 12-12-1989 u/s 145 (1) Cr. P. C. and u/ s 146 Cr. P. C. for the attachment of property measuring about 1200 sq. yards, in the north of which the Floor Mill of Natha Singh & Indra Singh was there, in the South of which there was a drain, in the east there was a road and in the west, there was a drain and there were seven rooms constructed over the said land. The Executive Magistrate also ordered to S. O. , Muni-ki-Reti to appoint some person as a Receiver. In compliance of that order- dated 12-12-1989, S. O. , Muni-ki-Reti attached the above-said property on 13-12-1989 and Satya Prasad was appointed as Receiver and the property was given in the Supurdgi of Satya Prasad. Thereafter, both the parties filed their respective written statements against the order dated 12-12-1989 passed u/s 145 (1) Cr. P. C.
3. Respondent No. 2-Mastan Singh filed his written statement on 24-3-19r 0 and stated that he is in possession over the land in dispute since last 25 years and seven rooms were constructed by him over the land in dispute and out of those seven rooms, five rooms were con structed by him eighteen years before. He further stated that in the notification dated 23-3-1978, his possession was shown in the plot Nos. 18 to 41 and 51. He further stated that in two rooms, Jay Shankar Prasad Maithani was his ten ant and he was paying rent of Rs. 200/ - per month since 1985. He further stated that the revisionist - Ashok Prapanna Sharma also tried to take pos session over the land in dispute in De cember, 1989 but he (Mastan Singh Panwar) stopped the revisionist in doing so and lodged the FIR in the police sta tion. It was further averted that till the date of attachment of the property, he was in continuous possession over the said land from last 25 years.
4. The present revisionist-Ashok Prapanna Sharma also filed his written statement wherein he stated that the said property belongs to Bharat Mandir, Rishikesh and he is the Mahant of that temple. He further stated that the con struction was done by him and the said property was in his physical possession on 11-12-1989. He further stated that on 12-12-1989 and before two months of 12-12-1989, he was also in posses sion over the said land in dispute and Bharat Mandir, Rishikesh is the owner and was in possession over the said land in dispute.
5. In oral evidence, Respondent No. 2-Mastan Singh got examined P. W. 1 Jugal Kishore who has stated that Mastan Singh was in possession over the land in dispute and he has also stated that he was a contractor and he had constructed two shops over the said land in dispute and the shops were got con structed by Mastan Singh and the con struction was completed in the month of September, 1989.
6. P. W. 2 is Puran Singh Aswal who has stated that Mastan Singh was in possession over the land in dispute and he was residing 60
