DODHU GHANA PATIL Vs. CHANDAS GHANA PATIL

JUDGEMENT

(1.) THE material facts which gave rise to the filing of this writ petition may be stated as under:

(2.) THE petitioner and the respondent No. 1 are brothers. Their father and mother died some time in 1936. Their joint family owned three agricultural lands and the house at Nashiradad. In or about 1943, partition took place. In the partition two lands were given to the share of the respondent No. 1 and the petitioner was allotted one land. The house was divided equally. The dispute, however, started in regard to the land gut No. 231 admeasuring 6 hectares 13 acres situated at village Markhede. The petitioners claim is that he was the tenant on the land and he became owner by virtue of the provisions contained in section 32 (2) of the Tenancy Act. He is a certified owner. That fact has been totally denied by the respondent No. 1, according to whom, the land was adjoint family tenancy land. The respondent No. 1, therefore, claimed his half share in the said land. On account of that dispute, it appears that complaints were made to the police. As a result, the proceedings under section 145 of Code of Criminal Procedure were initiated. Simultaneously, the respondent No. 1 also filed R. C. S. No. 164/1982 on 6. 4. 1982 for partition of the said land. The suit was decreed holding that the land was joint family property. That decree was questioned in appeal and during pendency of appeal, in the proceeding under section 145 of the Code of Criminal Procedure, the Executive Magistrate by his order dated 4-4-1983, prevented both the parties from entering into the land and appointed the Revenue Circle Inspector as the Receiver of the land. Further order came to be passed by the Executive Magistrate, directing the receiver to hand over northern half portion of the land to the petitioner and southern half portion to the respondent No. 1. That order of Executive Magistrate was questioned in revision before the Sessions Court and the learned Additional Sessions Judge set aside the said order by observing that the Executive Magistrate has no jurisdiction to pass an order. That order of the learned Additional Sessions Judge is subject matter of this writ petition.

(3.) AT the outset, it may be stated that Shri Mandlik, learned Counsel for the petitioner admits that the decree passed by the Civil Court for partition of the land was confirmed in appeal but this Court dismissed the second appeal preferred by the petitioner. The matter, according to him, is however, taken to the Supreme Court and he does not know the result thereof. Quite apart, on merits, it cannot be said that the learned Additional Sessions Judge was not justified in interfering with the order passed by the Executive Magistrate. In a proceeding under section 145 of the Code of Criminal Procedure, if the Magistrate finds that the parties were in joint possession of the disputed property wherein one of the parties claim exclusive possession, and whereas the another claim joint possession, only recourse available to the Magistrate is to drop the proceeding. In the present case, there is absolutely no evidence to show that the petitioner was in exclusive possession of the land in dispute. In the circumstances, the Executive Magistrate was not correct in directing the Revenue Circle Inspector to put the petitioner in possession of Northern portion and the respondent No. 1 in Southern half portion of the land. There is, therefore, no merit in the writ petition. It is liable to be dismissed. The decision in Civil Suit will have binding force on the parties.