ARYA DATT Vs. STATE

JUDGEMENT

(1.) This petition has come up in consequence of an order passed by an Additional Sessions Judge, Delhi in exercise of the power given by section 438 of the Criminal Procedure Code, hereafter called "the Code".

(2.) The petitioners who moved the Sessions Judge under sections 435/438 of the Code were Arya Datt, Ramesh Chander and Balesh Chand,er. Their case was that they had purchased the land comprised in khasra Nos. 29/8, 30/20/1 and 31/4,7 min in village Jharoda, Delhi from one Baldev Lal to whom it had been allotted by the Custodian of Evacuee Propertin whom it cams to vest because of the migration to Pakistan of the original Muslim owners. On the basis of the title acquired through the afore-mentioned purchase a suit was filed by the afore-mentioned petitioners against respondents 2 to 4 to this pention. The suit was for possession of the land which the petitioners had purchased. It was decreed by Mr. Jaspal Singh. Sub-Judge 1st Class on the 31st of October, 1968. The petitioners being decree-holders took out execution and a warrant of possession was issued by the executing court. In execution of that warrant Kanungo Bhim Singh went to the spot on the 20th of November, 1968 and I have read the reports made by him on that date regarding the delivery of possession of Khasra Nos. 31/4, 7 min and 30/20/1. It is conceded that the report regarding khasra No 29/8 was similar although it is not available and it is submitted that it was some-how misplaced. It is clearly stated in the report by Bhim Singh Kanungo that wheat crop was standing in the fields of which possession was to be given. He has stated in the reports that "Kabza Malkhana" was given. There was no decree for the delivery of the possession of the crops standing on the land. In execution of the decree, the petitioners were entitled only to-receive possession of the land which was the subject matter of the suit. The Kanungo found difficulty and in his report made on the 21th of November, 1968 assessed the value of the wheat crop. The decree-holders were directed to deposit the assessed amounts in Court. Respondents 2 to 4 to this petition filed the objections against the assessment of price and refused to receive the amounts deposited in Court. Their objections were dismissed. Thereafter dispute arose between the parties regarding the possession of the afore-mentioned land and a report was remitted by the police to the Sub-Divisional Magistrate that there was apprehension of breach of peace. On perusing the report, and talcing into consideration the circumstances prevailing between the parties, the Sub-Divisional Magistrate initiated proceedings under section .145 of the Code. The relevant portions of .the provision are sub-section (1) and (4):--

(3.) After going through the reports made by the Kanungo that all the fields were under wheat crop at the time when he went to deliver the possession and that he had been able to deliver only symbolical possession by way of "Kabza Malkana'' and after taking into consideration the documents furnished by the parties within the scope of subsection (1) of section 145, the Court acting within sub-section (4) thereof came to the conclusion that respondents 2 to 4 were in actual physical possession.