JANGVIR SINGH Vs. STATE

JUDGEMENT

(1.) This is a reference by the learned Addl. Distt. Magistrate, Bulandshahr, in a case Under Section 145 Code of Criminal Procedure recommending that the order of the trial magistrate directing the release of the attached property in favour of the Chairman of the Land Management Committee of the Gaon Samaj of village Saneta Shafipur be set aside and the case be sent back for disposal according to law.

(2.) It appears that one Jangbir Singh made an application Under Section 145 Code of Criminal Procedure against Diwan Singh and others that he was in possession of the disputed property; that the opposite parties wanted to dispossess him forcibly from it and on account of it there was an apprehension of the breach of the peace. The property in dispute was attached on the report of the police that there was an apprehension of the breach of the peace and a preliminary order was passed directing both the patties to file their written statements. Both the parties filed their written statements and alleged their respective possession. The learned Magistrate after a consideration of the entire evidence was of the opinion that the applicant was not in possession of the disputed property. He, however, did not give any clear finding as to whether the possession of the opposite parties had been proved. He was of the opinion that as the disputed land was parati it had vested in the Gaon Samaj and both the parties wanted to usurp it He, therefore, directed the attached property to be released in favour of the Gaon Samaj, though the Gaon Samaj was no party to the case nor had made any claim to it. On the contrary, it appears from the judgment of the lower court that the Chairman of the Gaon Samaj himself admitted that at least a portion of the disputed property was in possession of the parties. The learned Magistrate not only directed the release of the attached property in favour of the Gaon Samaj but further held that the bhumidhari sanad had been obtained by arranging false entries in the records of 1359F in order to support a false claim and directed that a copy of the judgment should be sent to the Tahsildar, Khurja for holding an inquiry as to how the false entries in the records of 1359F could creep in, and that the Tahsildar should also consider the cancellation of the bhumidhari sanad, which had been obtained on the basis of these bogus entries.

(3.) The lower court has observed in its judgment that the learned Magistrate had gone out of his way in deciding questions which were not open to him in the case Under Section 145 Code of Criminal Procedure and had acted arbitrarily in ignorance of the provisions of Section 145 Code of Criminal Procedure. There can be no doubt that the learned Magistrate in a proceeding Under Section 145 Code of Criminal Procedure was required only to determine as to which of the parties who were before him were in possession of the disputed property on the relevant date, i.e. on the date of the preliminary order, or within two months preceding it. It was not open to him to decide the question of possession or title of persons who were not parties to that case, nor he could act arbitrarily on his own personal knowledge or on consideration of extraneous matter in deciding the question of possession. It appears from the judgment of the trial Magistrate that he was not satisfied with the possession of the applicant. It, however, does not appear whether he believed the evidence of the opposite parties on the question of possession. If however, he was of the opinion that none of the parties before him was in possession of the disputed land on the date of the preliminary order, if he was not in a position to determine as to which of the parties was in actual possession, he could proceed Under Section 146 Code of Criminal Procedure and direct that the property was to remain under attachment till either of the parties had got its claim established by the competent civil court. There can be no doubt that the order of the learned Magistrate directing the release of the attached property in favour of the Gaon Samaj, which had not laid any claim to the disputed property and which was no party to the case, is wholly illegal The learned Magistrate has also gone out of his way in directing the Tahsildar to determine the question as to how the name of the applicant was entered over the disputed land and to take steps for the cancellation of the sanad obtained by him.