TEJ PAL Vs. DALIP AND ORS

JUDGEMENT

(1.) These three cases arise out of a proceeding Under Section 145 Code of Criminal Procedure.

(2.) It appears that one Shera had two sons, Dalip and Asa Ram Asa Ram predeceased his father Shera leaving his widow Smt. Sukhdei. Shera was possessed of certain plots of land. He made a gift of some of them in favour of his daughter-in-law Smt. Sukhdei. It is said that Smt. Sukhdei was in possession of the plots which had been gifted to her. Smt. Sukhdei died in March, 1951, leaving her daughter Smt. Hukmo and her son-in-law Tejpal. On 3-7-1952 Tejpal on behalf of his wife Smt. Hukmo made an application Under Section 145, Code of Criminal Procedure that he was in actual possession of the disputed plots and the opposite-parties, namely, Dalip, Jagat Singh, Shera and some others, were threatening to disturb his possession and on account of it there was an apprehension of breach of the peace. The plots in dispute were attached after obtaining the police report that there was an apprehension of breach of the peace, and a preliminary order was passed on 4-8-1952 directing the parties to file their written statement. About a month after this preliminary order on the 8th Sept. 1952 Dalip filed a suit in the Civil Court for the cancellation of the gift deed which had been executed in favour of Smt. Sukhdei and her daughter Smt. Hukmo on the allegation that he was in possession of the disputed plots and the gift deed was a fictitious transaction. This suit was dismissed on 2-6 1953 and the gift deed in favour of Smt. Sukhdei was held to be a genuine transaction. Both the parties filed their statements and alleged their respective possession over the plots in dispute. They produced documentary and oral evidence in support of their possession. The learned Magistrate after a consideration of the entire evidence was of the opinion that Shera was in actual possession of the disputed plots. In spite of this finding he did not order the release of the attachment in favour of Shera, and the reason for it was that in the Civil Suit which had been filed by Dalip against Smt. Hukmo and others the gift deed in favour of Smt. Sukhdei was held to be genuine and she was found to be in possession of the disputed property. In view of this decision he thought it proper to continue the attachment of the property Under Section 146 Code of Criminal Procedure till either of the parties had got its title determined from the competent court. Against this decision two revisions were filed, one by Tej Pal. He contended that the finding of the learned Magistrate that Shera was in possession was incorrect and that the order directing the continuance of the attachment Under Section 146, Code of Criminal Procedure was illegal. The other revision was filed by Dalip. He contended that in view of the finding that Shera and his companions were in possession of the disputed plots the attachment should have been released in their favour and the order Under Section 146 Code of Criminal Procedure directing the continuance of the attachment incorrect. Both these revisions were decided together by the learned Sessions Judge. He was of the opinion that the finding of the learned Magistrate with regard to possession was perverse and that from the evidence on the record it was obvious that Smt. Hukmo and Tej Pal were in actual possession of the disputed plots. In arriving at this finding he was influenced by the decision of the civil court in the suit which had been filed by Dalip for the cancellation of the gilt deed. It may be mentioned here that the learned Magistrate did not correctly read the judgment of this civil case when he made the observation in his order that there was no finding about possession by the Civil Court. As has already been said above, the civil court found the possession of Smt. Hukmo and Tejpal while considering the genuineness of the gift deed. The learned Sessions Judge has, therefore, made the references to this Court recommending that the order of the learned Magistrate passed Under Section 146 Code of Criminal Procedure may be set aside and that the plots in dispute might be released in favour of Smt. Hukmo, w/o Tej Pal. Dalip Singh and others have filed a revisipn against this order of the learned Sessions Judge and as the questions involved in the revision are similar as those in the two references I propose to decide them together.

(3.) It has been contended on behalf of Tej Pal and others that the finding of the learned Sessions Judge that the decision of the trial court on the question of possession was perverse is incorrect. It was also contended that in revision the learned Sessions Judge was not justified in going through the entire evidence on the record and reversing the finding of the trial court. There is no doubt that ordinarily in revision the finding of the trial court is accepted as correct unless there is material on the record to show that the finding is perverse or has been arrived at without any evidence in support of it. It need not be said that in order to decide an application Under Section 145 Code of Criminal Procedure the Magistrate is concerned only with the determination of the question of actual possession and this decision has to be made by him after considering the evidence produced by the parties. It may also be mentioned here that in arriving at this decision he is not bound by the decision of any civil or revenue court, though that decision may be taken into consideration as a piece of evidence in order to determine the question of possession. I have gone through the judgments of both the courts below and after their perusal I find it difficult to hold that the findings of the trial court are perverse. It has not been seriously disputed before me that Shera was actually cultivating the plots in dispute. The main contention on behalf of Tej Pal was that Shera was cultivating these plots not in his own right but as his agent because he was living in another village. There is no doubt that Smt. Hukmo is the daughter of Smt. Sukhdei and that a gift deed was made by Shera in favour of Smt. Sukhdei, but that fact by itself could not conclusively prove that Shera was cultivating the disputed plots as the agent of Tej Pal after the death of his daughter in-law Smt. Sukhdei. The learned Magistrate has referred to the statement of Tej Pal wherein he stated that Shera had gone over to the side of his son Dalip about 5 or 6 months before his statement. This statement was made in November, 1952. It is, therefore, clear from this statement that Shera was with Dalip at least since May, 1952 and had joined in the cultivation. In the circumstances, it seems somewhat doubtful that he was in possession of the disputed plots on the date of the preliminary order on behalf of Smt. Hukmo. In any case there is no satisfactory evidence in support of this fact. Smt. Hukmo's name was also not entered in the Khasra of 1359 F. over the plots in dispute. It may be that after the death of his daughter-in-law Mst. Sukhdei, Shera changed his mind and went over to his son Dalip as he did rot want that the plots in dispute should go into another family. Nothing definite can, however, be said in absence of any evidence one way or the other on the point. I do not think that merely because Shera was helping his daughter-in-law Smt. Sukhdei so long as she was alive he had the same intention towards Smt. Hukmo. I do not think that merely because the civil court in the suit filed by Dalip found the possession of Smt. Sukhdei and Smt. Hukmo that alone should have been taken into consideration in deciding the question of possession. After a consideration of the entire evidence on the record I am not satisfied that the finding of the trial magistrate is perverse and such as should have been set aside in revision by the lower court. In view of that finding the opposite party was entitled to the possession of the disputed plots.