PARTAP SINGH Vs. STATE

JUDGEMENT

(1.) This criminal revision whicharises out of proceedings under section 145, Criminal Procedure Code, wasreferred to a Division Bench, because our learned brother Gurdev Singh J.was not inclined to agree with what His Lordship termed as a wide proposition laid down in Sayed Salahuddin Ahmed v. Janki Mahton andothers.

(2.) Briefly stated the facts of the case are that there was somedispute regarding possession of 14 plots of land measuring in all 39 bighas14 biswas which were at one time evacuee property. Proceedings undersection 145, Criminal Procedure Code, were initated at the instance ofthe police. By his order dated the 25th of July, 1963 the learned Magistrate held that it was the first party, namely, Prabhu, Data Ram, Munshi,Ramu, Bhartu, Mohan, Roop Chand, Udmi, Budha Amar Singh, Teka andBhima who were in actual possesssion of the land in dispute on Ist ofDecember, 1962, he date of preliminary order. The Magistrate accordinglyordered the possession to be delivered to first party and directed thesecond party, namely, Partap Singh not to interfere with the peaceful possession of the first party unless the first party was evicted in accordance withlaw. The case set up by Partap Singh, the second party was, that the saidplots of land were allotted to him and Mohan Lal on 5th of January 1961by the Ministry of Rehabilitation and the possession thereof was deliveredto them by the Managing Officer on the spot on 3rd of June 1962. Itwas further contended by Partap Singe that intimation about delivery ofpossession was sent to the Tahsildar on 4th of June 1962 and entryregarding transfer of possession was made in Roznamcha on 12th of June1962. Preliminary order was passed under section 145 (1), Criminal. Procedure Code. on 1st of December 1962. The learned Magistrate aftergoing through the material on record held that the second party had failedto establish beyond doubt that possession over all the 14 plots was delivered to him. He further held that even if the possession of all the 14plots had been delivered on 3rd of June 1962 it was of no avail to thesecond party since the actual possession on the date of preliminary orderalone had to be taken into consideration under section 145, CriminalProcedure Code. In the end the learned Magistrate concluded that on 1/12/1962 the actual possession of the disputed plots was with partyNo. 1. Aggrieved by this order Partap Singh filed a revision petitionbefore the Additional Sessions Judge. The learned Additional SessionsJudge following the decision of Sayed Salahuddin Ahmad's case held thatsince the property was evacuee property the provision of section 145,Criminal Procedure Code, did not apply. In this view learned AdditionalSessions Judge recommended to this Court that the proceedings taken bythe trial Court under section 145, Criminal Procedure Code, and the orderof the learned Magistrate made in this behalf be queashed. When thematter came before Gurdev Singh J. His Lordship expressed some doubtas to 'the correctness of the rule laid down in the Patna decision and asstated above the case was referred to a Division Bench. This is how thematter has come before us.

(3.) It is not disputed before us that the property in dispute was atone time evacuee property but was later acquired by the Central Government under section 12 of the Displaced Persons (Compensation and Rehabilitation)Act, 1954, and became part of the compensation pool, constituted under section 14 of the said Act. In view of this it is not necessary toexpress our views directly regarding the Patna decision which turns on theprovisions of the Administration of Evacuee Property Act. We say"directly" because we have been asked to hold that the same principleapplies to properties vesting in the Central Government under section 12of Displaced Persons (Comensation and Rehabitation) Act 1954. thelearned Magistrate rightly held that he had for the purposes of section 145,Cnminal Procedure Code, to decide as to which of the parties was in actualpossession on the date of preliminary order made under section 145 (1),that is, the 1st of December 1962. No doubt by virtue of second proviso to.sub-section (4) of section 145, Criminal Procedrre Code, if it apeared tothe Magistrate that any party had within two months next before thedate of the preliminary harder been forcibly and wrongfully dispossessed,he could treat the party so dispossessed as if he had been in possessionon the date of the preliminary order, but that also could at the most,require determination of the position only on a day two months next beforethe date of the preliminary order. The allegation of the second party,namely, Partap Singh that the actual possession was obtained by theallotteel from the Managing Officer on 3rd of June 1962 would, therefore,be not decisive of the issue. The learned Magistrate, therefore, rightlywent into the question of actual possession on the date of the preliminaryorder.