VIPRA MANISHANKAR VAGHJI Vs. SHAVJI GOVINDA

JUDGEMENT

(1.) THIS revision arises out of an application which the present applicant presented to the First Class Magistrate, Junagadh, in respect of certain land under Section 145, Criminal P.C. The land comprises of a field and a wadi in Rampur.

(2.) THE land in question belonged to Nizam Mahomed Khanji the Barkhalidar of Ranpur under the former Junagadh State and measured about 100 Vighas. The applicant and one Jivram Rugnatli were the lessees from the Barkhalidar but to 1944 A.D. the Barkhalidar resumed the land from them and handed it over to the opponents on payment of Nazrana while he gave the applicant and his co -sharers 40 Vighas of land in exchange, The applicant's co -sharer is not a party to these proceedings and all references will hereafter be made to the applicant only in connection with this land and the proceedings connected with it. After the administration of the Junagadh State was taken over by the Government of India, the Junagadh Government published notification No. R/230 dated 4.8.1948 appointing a Committee to inquire into cases of irregularity and high -handed action in respect of Chav lands and houses etc. resulting in eviction of established tenants by landlords. The Committee was to make a report and the Junagadh Government or an authority nominated by them were empowered to pass orders on the report of the Committee and their orders were declared to be final and it was directed that they should be enforced under the Revenue Procedure obtaining in the State. By another notification No. R/231 of 1948 of the same date rules of business of the Committee were framed. Both these notifications were published in the Junagadh State Gazette dated 6.8.1948. After the establishment of this Committee the applicant applied for restoration of the land to the Committee which made a report upon it. The Government of Saurashtra with which the Junagadh State was integrated by this time passed an order dated 5.4.1951 directing that the land in question should be handed over to the applicant and the land which was given to him in exchange should be returned to the Barkhalidar. The Talati of the Khambhalia group villages was instructed to execute the order by delivering possession to the applicant. Thereupon on 15.4.51 the Talati went to Ranpur, called the opponent No. 1 at the utara and in the presence of the panchas asked him to hand over possession of the land to the applicant. The opponent however refused to comply with the order. The Talati made a rojkam Ex. 27 at the utara recording these facts. He then proceeded to the land with the applicant and the panchas and handed over possession to him and made two rojkams on the spot Exs. 28 and 29. The dispute about the possession of this land however continued between the applicant and the opponents. The opponents gave a notice to the Government under Section 80, Civil P.C. and applied for a stay of execution of their order and the applicant filed two complaints against the opponents under Section 447, I.P.C. and also moved the First Class Magistrate to take proceedings against them under Section 107, Cr.P.C. Ultimately on 15.5.51 the applicant filed the present application against the opponents under Section 145, Cr.P.C. complaining of disturbance to his possession and praying for an order against them', forbidding interference With it. On the same day the learned Magistrate passed a preliminary order under Sub -section 1 directing the opponents to file their written statements respecting their claim with respect to actual possession of the land. In their written statements the opponents denied that the applicant was in possession of the land and contended that the land was in their actual possession. The learned Magistrate after recording the evidence of the parties held that on the date of the preliminary order the opponents were in actual possession of the land. With regard to the proceedings of the Talati, he held that the applicant was merely given symbolical possession and the actual possession continued to remain with the opponents. He also held that the proceedings of the Talati were not in accordance with the Land Revenue Code of the Junagadh State, he having failed to give one month's notice to the opponents as requited by Section 202 of the Code and therefore they could not have the effect of transferring possession to the applicant and on these findings he dismissed the application. A receiver was appointed in the course of the proceedings and the produce of the land in question was sold by the receiver and he was directed to hand over the net proceeds of the produce to the opponents. The present applicant preferred a revision to the Sessions Judge, Sorath Division against the order of the learned Magistrate without success and he has now applied to this Court in revision against the learned Judge's order.

(3.) ARGUMENTS were addressed to us that the Talati had failed to comply with the mandatory provision of Section 200 of the Junagadh State Land Revenue Code in delivering possession of the land to the applicant and therefore his proceedings cannot have the effect of transferring possession to the applicant and cannot be the basis of even a suit for possession. Under the provisions of this section before a person can be evicted from agricultural land in execution of an order of eviction under any law one month's notice should be served on him. Section 202 of the Bombay Land Revenue Code which has been applied to Saurashtra is also to the same effect except that the Bombay Code requires that reasonable notice must be given to the person to be evicted. In this case, it is not shown that any notice was served on the opponents calling upon them to vacate the land except the oral demand of the Talati requiring the opponent No. 1 to deliver possession to the applicant immediately. The question whether the Talati complied with the provisions of the Land Revenue Code and what would be the effect of non -compliance with those provisions raises important questions which in our opinion it is not necessary to decide in these proceedings. Our finding that the opponents were in actual possession of the land on the date of the preliminary order is sufficient to dispose of the present revision and therefore we do not wish to express any opinion on this question and would leave it for determination between the parties in a civil suit.