Rameshchandra vs Jankilal - 1987 Supreme(MP) 634

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : A. K. Sethi
For the Respondent: M. L. Shah

Headnote:(1) Criminal Procedure Code, 1973 – S. 145 – Criminal law – respects actual possession.
       (2) Criminal Procedure Code, 1973 – S. 145 (1) and 146 (1) – both sections to be read together – even after emergency attachment enquiry as to possession is necessary.
       (3) Criminal Procedure Code, 1973 – S. 397 – scope of revisional powers is limited – findings of fact cannot be interfered with.
        Short Note
       1. This revision petition is directed against the order dated 20 – 10 – 82 passed by the 3rd Additional Sessions Judge, Ujjain in Criminal Revision No. 172 of 1982 whereby setting aside the order passed by the learned S. D. M. under section 145 (6) of the Cr. P. C. 1973 (for short 'the Code') directing delivery of possession of the land in dispute under attachment to Rameshchandra he has ordered that the non – applicant Jankilal be placed in possession of the same.
       2. Held: It may be pointed out that the lands in question situate at village Baledi initially belonged to Mangilal and his brother Madanlal. Mangilal died on 1 – 1 – 80 and Madanlal had pre – deceased him, his date of death being 17 – 1 – 78. The two brothers did not reside in the village Baledi but resided in Ujjain. The non – applicant Jankilal resident of Ujjain is the son of the said Madanlal. According to the petitioner Rameshchandra resident of Baledi he had been in possession of the lands in dispute for the last 29 years. He set up a will by Mangilal in his favour.
       3. It may be pointed out that the criminal law respects actual possession seeks to protect it even against true owner. Existence of a dispute likely to cause a breach of peace is the very foundation of the Magistrate's jurisdiction under section 145 of the Code.
       4. It is well settled that the provision u/s 145 of the Code has to be read together with section 146 ibid, and even after emergency attachment as contemplated in sub – section (1) of section 146 of the Code, the enquiry has to go on for deciding whether any and which of the parties was at the date of preliminary order u/s 145 (1) ibid was in possession of the subject of dispute. This the Magistrate has to do without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute. Under the proviso to sub – sec. 4 of sec. 145 of the Code he has discretion to treat by forcible and wrongful dispossessed within two months next before the date on which the report of the police officer or other information was received by him, or after that date and before the date of his order under sub – sec. 1 as if that party had been in possession on the date of this order under sub – sec. 1.
       5. The proceedings are designed to dissuade parties; including the true owner, from taking law in their own hands and evict a person in possession otherwise than in due course of Jaw. They provide stop – gape – arrangement for preservation of peace and tranquility till the party aggrieved by the final order u/s 145 (6) of the Code as a law – abiding citizen approaches the competent Court and gets the dispute as to possession determined by a competent Court.
       6. It may be pointed out that revisional jurisdiction is limited in its scope and is also discretionary. In this connection, the decision Akalu Ahir v. Randeo, (1973 Cr.L.J. 1404) may usefully be perused. The decision in Gopal's case (1984 MPWN 452) is also pertinent. Normally, in exercise of revisional jurisdiction finding of fact is not to be disturbed by reappreciating the evidence unless the finding is perverse and results in miscarriage of justice. When it is based on no evidence or on non – reading of evidence or on misreading of it, interference therewith is certainly permissible.
       7. I have carefully gone through the record and am of the view that the final order passed by the learned Magistrate under section 145 (6) of the Code is in favour of the petitioner is based on a proper appreciation of oral and documentary evidence and is unassailable. 1973 Cr.L.J. 1404 and 1984 MPWN 452 relied on. AIR 1973 SC 1299 followed. Revision allowed.