KANTA PRASAD Vs. VISHNU

JUDGEMENT

(1.) THIS revision has been directed against the judgment and order dated 23.11.2002 passed by the Additional Sessions Judge/I FTC, Haridwar wherein, in criminal revision no.325 of 1998 filed by Vishnu and two others against Sri Kanta Prasad, the judgment and order of Sub Divisional Magistrate, Roorkee dated 7.9.1998 was set aside. The dispute between Sri Kanta Prasad on the one hand and Sri Vishnu and two others on the other, pertains to an agricultural/grove land bearing Khasra No.1031, 1032 and 60 situated in village Kheri, Shikohpur, Tehsil Roorkee [now District Haridwar]. The Magistrate vide his above mentioned order in the proceedings under Section 145 Cr.P.C. declared the possession of Sri Kanta Prasad over the said land on the basis of the report of Tehsildar Roorkee dated 24.4.1997 and the copy of the extract of half-yearly Khatauni issued by the Lekhpal concerned, wherein Sri Kanta Prasad?s name was mentioned in the Column of tenure holder with a status of Part-II Class IX.

(2.) LEARNED counsel of Sri Kanta Prasad has explained the meaning of ?Part II tenure holder?, i.e. the one who although not a real owner but have occupied the land of other person by anyway and the real owner has not disputed the adverse possession for continuously two months or more, then his name is recorded as Part II tenure holder irrespective of the ownership of another person over the same land. The real owners are called the tenure holders of Part-I, as is adverted by a copy of Khasra 1399 Fasli issued by the same Lekhpal. In that copy of Khasra, the names of Vishnu, Akbar, Dasa and Nanda @ Nandhu are recorded as tenure holder of Part-I while Sri Kanta is recorded as the tenure holder of Part-II. LEARNED Sub Divisional Magistrate has recorded his finding on the basis of these documentary evidence as well as on the report of Tehsildar, Roorkee.

(3.) IN these circumstances, it can be inferred that in civil proceedings in the court of Civil Judge (Junior Division) as well as in the court of Additional District Judge, Sri Kanta Prasad was not found in possession. Therefore, it is not in the interest of justice for the High Court to permit Sri Kanta Prasad for agitating the issue under the garb of Section 145 Cr.P.C. Last, but not the least, the State has not been made a party in this revision by Sri Kanta Prasad. When the Sub Divisional Magistrate passed his judgment and order on the report of revenue officials from the lowest level up to that of Tehsildar, then it was desirable to hear the State also by this Court which has not been possible because Sri Kanta Prasad, the revisionist did not make them a party.