MUSADDI AND OTHERS Vs. JANGI AND OTHERS

JUDGEMENT

(1.) THIS reference has been made by the Sessions Judge by his order dated 24-4-1974 in Cr. Revision No. 123 of 1973 with the recommendation that the final order passed on 11-12-1973 by the Magistrate in proceedings under section 145, Cr.P.C. be set aside.

(2.) THE dispute was with regard to plot of No. 40 measuring 1 acre 11 decimal. The present revisionists moved the court for taking proceedings under section 145, Cr.P.C. as they alleged that there was an old graveyard of the Mohammedans on that plot of and it was used as grave-yard from time immemorial. The opposite parties claimed this plot of to be theirs as their agricultural plot of having been purchased from one Budhu. A preliminary order A-38 dated 7-7-1970 was passed attaching the plot of under section 14, Cr.P.C. after a report from the station officer was called for. Both the parties then filed their written statements. The Magistrate was not in a position to decide the controversy. He, therefore, made a reference under section 146, Cr.P.C. to the Munsif. The finding of the learned Munsif dated 20-9-1973 was received which was in favour of the opposite parties before the final order could be passed by the Magistrate, some of the present revisionist moved an application on 20-11-1973 under section 145 (5), Cr.P.C. to the effect that there was no longer any apprehension of the breach of the peace and as such the pro­ceedings be dropped. This application was supported by affidavits. It was stated that the matter had been decided in a civil suit with respect to the disputed land. It may be stated here that it appears that in the civil suit the applicants had confined their case to a portion of plot of No. 40 measuring 45 acres only. The learned Magistrate, however, did not pass any order under section 145 (5), Cr.P.C. but passed the final order on the basis of the finding of the learned Munsif given under section 145, Cr. P. C. Applications were also moved before the Magistrate by both the parties to the effect that the case was covered by section 147, Cr.P.C. and not by section 145, Cr.P.C. But he rejected those applications proceeded under sec­tion 145, Cr.P.C.

(3.) SRI Swaraj Prakash, learned counsel for the opposite parties has opposed this reference on both the grounds. He has argued that the dispute was, in fact, with regard to actual possession of the land and not with regard to any right of user in the land and as such the proceedings under section 145, Cr.P.C. were rightly taken. For the purpose of section 145, Cr.P.C. the question of title is not material. When persons of a community claimed that certain land was used as grave-yard of their community from time immemorial, they obviously claimed possession of the same. There may be cases when certain land remains in possession of one party but is used for certain purposes by the other party e.g., it is used for Ramlila once a year or is used for Holi bonfire or is used for Tazia. In all such cases the possession will remain with the party and the land can be used by the other party for limited purposes only. Similarly, a passage may be claimed in a portion of certain land. But in the present from the very nature of the claim of the revisionists it appears that they were claiming possession of land as grave-yard of their community. In the case of Nanak Chand State (1968 Cr. Law Journal p. 1336) a learned Single Judge of Rajasthan High Court that the controversy was covered by section 145, Cr.P.C. when one Oswal community claimed certain piece of land as a private lane for going to the houses whereas that land was claimed to be in her possession by one Rajeshwari Devi. In my opinion, it will depend upon the nature of the claim whether only a right of user is claimed or possession is claim­ed. I am satisfied that in the present case possession as grave-yard is claimed and not only a more right of user, and as such proceedings were rightly taken under section 145, Cr.P.C.