TUKARAM DHARMAJI BHANGARATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Applicants have filed this application challenging the order passed by the Addl. Sessions Judge, Thane, in Criminal Appeal No.54 of 1996. Following short summary of facts is sufficient for disposing of this Revision Application.

(2.) THE dispute concerns with the actual possession of 22 gunthas of land. The Petitioners claim that they are in possession of survey No.7/1/1 and the adjoining land bearing survey No.7/1/2 is of Respondent No.2. The area of land bearing survey No.7/1/1 is in possession of the petitioners which admeasures 0-99-5 hectares, whereas the area of survey No.7/1/2 in possession of Respondent No.2 is 0-44-5 hectares. The learned Executive Executive Magistrate passed an order on 6.2.1996 to the effect that the land bearing Survey No.7/1/2 belongs to Respondent No.2 Anant Ganpat Malik and Tukaram Dharmaji Bhangarath, Petitioner No.1, has no concern with the said land and that he has encroached upon the said land. This order was purportedly passed under section 145 of the Cr.P.C. The said order of the learned Executive Magistrate was challenged before the 4th Addl. Sessions Judge, Thane, by way of Criminal Appeal No.54 of 1996. The Petitioners moved an application before the learned Sessions Judge praying that the appeal was wrongly filed and the same be treated as a Revision Application. The learned Sessions Judge rightly concluded that the order is not appealable. He however held that the appeal cannot be treated as a revision application.

(3.) ADMITTEDLY , the learned Magistrate had decided the issue of title for which he has no jurisdiction under the provisions of section 145 of the Cr.P.C. and what is required to be decided by the learned Magistrate is as to which of the party was in physical possession on the date in question, irrespective of title. Against the order passed under Sec.145 Cr.P.C. Revision lies to the Sessions Court and therefore, even though through over-sight or otherwise by mistake an appeal was filed, the learned Sessions Judge could have suo-motu treated it as a Revision Petition. When a request to that was made, the learned Sessions Judge ought to have considered and heard the same by registering the appeal as Revision or by directing it to be treated as revision petition.