KHUSHI RAM Vs. STATE

JUDGEMENT

(1.) THIS revision by Khushi Ram arises out of proceedings Under Section 145 Code of Criminal Procedure.

(2.) IT is common ground that there is a plot of land measuring 77 bighas two biswas in village Tilwara police -station Thankaur in the district of Buiandshahr. A dispute involving an apprehension of breach of peace regarding the said plot having arisen between the parties to this revision, the SDM concerned passed a preliminary order and pending his decision ordered its attachment. Thereafter the parties filed written statements, affidavits etc. in support of their respective claims as regard the fact of actual possession of the subject of dispute. The SDM after considering them held that the opposite party was in possession of the said land on the date of the preliminary order and within two months next prior thereto. Khushi Ram went up in revision against that order to the Sessions Court and when he failed to get redress there, he filed Criminal Revision No. 1013 of 1967 in this Court. The revision was admitted on 16 -6 -1967 and on the same day an order was passed directing that the property in question shall remain in the custody of the supurdar. Thereafter on 24 -7 -1967, the opposite party moved an application praying for the vacation of the aforesaid order and for a direction that the supurdar and Khushi Ram, the Applicant, be ordered to deposit Rs. 61,460/ - on account of the price of the crops grown on the subject of dispute. This application was filed after serving a copy of it on Sri Swami Dayal, the Learned Counsel for Khushi Ram. It came up for final hearing before me on 16 -8 -1967 and the same day I set aside the stay order dated 16 -6 -1967 and directed the possession of the subject of dispute to be made over to the opposite ; party at an early date. So far as the prayer for a direction to the Supurdar and Khushi Ram to deposit Rs. 61,460/ - was concerned, I rejected it on the ground that this Court was not the proper forum for deciding what amount was payable on account of the price of the crops in question and to whom. Armed with this order the opposite party approached the SDM concerned and prayed that the possession of the subject of dispute as well as the crop grown, on it or its price might be delivered to him. The SDM issued notice to Khushi Ram and in reply to it Khushi Ram filed an application stating, (1) that the opposite party had filed a case Under Section 209 of the UP Zamindari Abolition Act in the court of the Judicial Officer, Sikandrabad, (2) that the said case was decreed exparte, (3) that on the basis of that exparte decree the opposite party obtained possession of the subject of dispute from the Applicant (i.e. Khushi Ram), (4) that it was on the basis of this possession that the Section 145 Code of Criminal Procedure proceedings terminated in his favour, (5) that thereafter the exparte decree was set aside and possession of the subject of dispute was restituted to Khushi Ram Under Section 144 Code of Civil Procedure on 23 -8 -1967 through court and (6) that after obtaining possession Khushi Ram moved an application Under Section 561 -A of the Code of Criminal Procedure in the High Court for the quashing of the proceedings Under Section 145 Code of Criminal Procedure which had given rise to Cr. Revision No. 1013 of 1967 and was pending in this Court then. On these allegations Khushi Ram, prayed that further proceedings Under Section 145 Code of Criminal Procedure be allowed to remain stayed till his application Under Section 561 -A Code of Criminal Procedure was disposed of by this Court. The SDM did not accede to this prayer and relying upon the order of this Court dated 16 -8 -1967 he passed an order on 7 -10 -1967 ordering delivery of possession of the subject of dispute to the opposite party.

(3.) ON behalf of the Applicant Sri Swami Dayal contended that as the effect of the order Under Section 144 Code of Civil Procedure whereby the Applicant was ordered to be put back in possession of the property in dispute on 23 -8 -1967, amounted to the ejectment of the opposite party 'in due course of law', the provisions of Section 145(6) of Code of Criminal Procedure were attracted to the present case and consequently the SDM was in error in passing the order under revision. On behalf of the opposite party his Learned Counsel Sri Girish Chandra, however, contended that as the affect of the dismissal of Cr. Revision No. 1013 of 1967 was that the opposite party was found in possession of the subject of dispute during the material period, the SDM had no option but to implement that finding. After hearing the Learned Counsel for the parties I am however of the opinion that the contention advanced by Sri Swami Dayal is to be preferred both on the plain language of Section 145(6) Code of Criminal Procedure as also the object and purpose underlying proceedings Under Section 145 Code of Criminal Procedure. I shall, therefore, proceed forth -with to give my reasons for coming to that conclusion.