RANG LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS reference to a Bench of five Judge was made because a Bench of three learned Judges thought that on the arguments and the controversy involved, this Court may have to reconsider the decision of an earlier three Judges Full Bench in Farzand Ali v. Shaukat Ali : 1970 A.L.J. 789. After hearing learned counsel for the parties and the learned Government Advocate, we find that in the facts and circumstances of the instant case no question arises for a reconsidering the decision in Farzand All v. Shaukat Ali (supra). A strip of land 53' x 19' in the town of Nanpara, having a number of wooden structures on it, was the subject matter of disputes between the applicants herein on one side and Prem Chand and two others along with him and the Gram Samaj on the other side. The applicants claimed to be in possession of the disputed property described above. Prem Chand and two others along with him claimed 'possession of one construction standing on the said land while the Gram Samaj claimed that it was in possession of the whole of the land along with the standing structures thereon. The applicants filed an application under Section 145, Cr.P.C. before the S.D.M., Nanpara impleading Prem Chand and two others and Gram Samaj as opposite parties. The applicants alleged that they were in possession of the said piece of land along with the structures standing thereon and the opposite parties were forcibly trying to take possession and thus there Was an apprehension of breach of peace. Police report was obtained which clearly stated that Prem Chand and two others were forcibly trying to take possession of structure No. 246 and hence there was apprehension of breach of peace. As the record stands the police report did not show that there was any dispute with regard to possession of whole strip of land. The learned Magistrate, on the basis of police report, recorded his satisfaction that there was apprehension of breach of peace and issued notices to the opposite parties. While Prem Chand and the president of the Gram Samaj filed objections, the other two persons named as opposite parties did not take part in the proceedings. Affidavits were filed by the parties in respect of their claims. The Magistrate finding some difficulty in recording a finding as to which party was in possession made a reference under Section 146, Cr.P.C. to the Munsif for recording a finding. Before the learned Munsif the applicants and Prem Chand only took part in the proceedings. Nobody seems to have represented the Gram Samaj before the learned Munsif. After hearing the parties the learned Munsif by his order dated November 23, 1968 found that Prem Chand was in possession of structure No. 246 and the land underneath it. He did not record any finding with regard to the remaining area of the big strip of land. The learned Munsif finally recorded the finding in the following words: - -

(2.) WHEN the matter came before the learned Magistrate an appreciation was filed on behalf of the applicants praying that as the learned Munsif recorded a finding with regard to structure No. 246 alone, the preliminary order itself be amended with a view to confine the dispute to that structure only. This application was rejected by the learned Magistrate. The learned Magistrate taking the finding of the learned Munsif as comprising the whole of the strip of land measuring 53' x 19' claimed by the applicants to be in their possession, being in possession of Prem Chand, who was the second party No. 1 to the application, passed an order releasing the whole of the land in favour of Prem Chand, The applicants filed a revision before the learned Sessions Judge against the order without any result and then they filed a revision before this court against the final order of the learned Magistrate releasing the whole property, that is, the land measuring 53' x 19' with all the structures standing thereon in favour of Prem Chand.

(3.) WE think that the finding of the learned Munsif was rightly construed by brother Srivastava, J. as confined to structure No. 246 alone and the land underneath it. The disputed property before the learned Munsif was structure No. 246 and the land underneath it as Prem Chand was the only contesting party and he confined his claim to the said structure and the land underneath it. We cannot impute an intention to the learned Munsif that he having found that Prem Chand was in possession only of structure No. 246 and the land underneath it, what he meant by the finding was that Prem Chand was in possession of whole of the big strip of land and the other structures standing thereon. Once the learned Munsif's order be construed in the manner in which our brother Srivastava, J. construed it, with which we agree, it is clear that the finding of the learned Munsif was that structure No. 246 on the land underneath it was in possession of Prem Chand and not of the applicants applying the ratio of Farzand Ali v. Shaukat Ali (supra) the learned Magistrate was bound to pass the final order accordingly, that is, he should have released only structure No. 246 with the land underneath it in favour of Prem Chand. In releasing the remaining part of the land and the other structure standing thereon in favour of Prem Chand the learned Magistrate fell into an obvious error. Whether the learned Magistrate could have re -submitted the matter to the Civil Court for a further finding with regard to the other part of the land and the structures thereon is not a question on which we are required to give any opinion, but what appears from the material on record is clear. The Gram Samaj who was the other contesting party did not take any interest in the matter beyond filing a written statement and affidavits. Nobody represented the Gram Samaj before the learned Munsif. It does not appear from the record that after the findings were returned by the learned Munsif to the learned Magistrate any person represented the Gram Samaj before the learned Magistrate. The very fact that the Gram Samaj itself has not questioned the order of the learned Magistrate releasing the whole property, that is, the big strip of land and the structures standing thereon in favour of Prem Chand, shows that the objection made on its behalf in the proceedings before the learned Magistrate was not serious and was only to assist Prem Chand. It has come in evidence on record that Prem Chand was a nephew of Hardwari Lal the Pradhan of the Gram Samaj. There is evidence on record adduced by the applicants that the Up -Pradhan of the Gram Samaj filed an affidavit in the support averring that Gram Samaj was never the owner of the land and the structures standing thereon. Thus the dispute can be resolved by this court itself instead of sending the matter again to the court of learned Magistrate. Moreover, we are informed that a civil suit has already been filed regarding whole of the property which is pending and same interlocutory orders have been passed pending the suit. Thus the controversy of title would finally be decided by the Civil Court and no useful purpose would be served by prolonging these proceedings before the learned Magistrate and asking the parties to agitate the matter of mere possession. We think that interest of justice would be served if we allow the revision and modify the order of the learned Magistrate.