YESHWANT GANPAT KHOT Vs. ANUSAYABAI ANNA KHOT

JUDGEMENT

(1.) Twelve pieces of lands situated at Villages Walva and Bavchi in Walva Taluka of Sangli District were the subject-matter of the proceedings under section 145 of the Criminal Procedure Code. On a report submitted by the Deputy Superintendent of Police, Sub-Divisional Magistrate of Walva, Division Sangli, registered a case, being Criminal Case No. 5 of 1977 in respect of the said lands. The preliminary order of his being satisfied that there is an apprehension of a breach of peace was made on 29th September, 1977. Thereafter, on recording evidence and hearing the parties, he passed an order on 29th December, 1977 that the petitioner before me who was Party No. 1 before him was in possession of the lands in dispute. Accordingly he issued an order prohibiting respondent No. 1 before me and Party No. 2 before him from disturbing the possession of the petitioner. This order was challenged by respondent No. 1 (hereinafter referred to as the respondent) in Criminal Revision Application No. 19 of 1978 which was heard and allowed by the learned Sessions Judge of Sangli by his Judgment and order dated 7th April, 1978. While so allowing the appeal, the learned Sessions Judge considered some decisions of the Civil Courts which have been unfortunately ignored by the Sub-Divisional Magistrate and came to the conclusion that the respondent and not the petitioner was in possession of the lands in dispute. It is this order of the learned Sessions Judge that is challenged by original Party No. 1 in this application.

(2.) Before, I proceed to take into account the very strong and rigorous argument made by Mr. B.Y. Deshmukh appearing in support of the petition, let me narrate chronological some of the facts which are, in my opinion, established on the basis of the record.

(3.) One Laxman Ganpati Khot who is the brother of the petitioner set up a claim at sometime that he was the adopted son of the respondent who was, therefore, compelled to file a suit, being Special Civil Suit No. 61 of 1968. In that suit that natural father of the petitioner and the said Laxman were joined as defendant No. 2, while the elder brother of Laxman who is the present petitioner was joined as defendant No. 3. There was a defendant No. 4 to whom no reference need be made in this present judgment. Several defences were taken on behalf of the defendants in that suit who included the present petitioner. From the judgment delivered in that suit, it is clear to my mind that there was a common defence of the three defendants in that suit which was that Laxman defendant No. 1, was the lawfully adopted son of the plaintiff in that suit (respondent here). It must also be mentioned that present petitioner did not set up any claim in that he was the tenant of the lends which belonged to the respondent. However, an issue was raised at much later stage of the suit in the following terms : "Whether the plaintiff proves that defendant No. 1 has leased the suit lands to defendant No. 3 for a period of three years?" That issue was answered in the negative. This shows that if at all some question of the rights or title of the petitioner in respect of the lands was involved, it was only through the said Laxman who was defendant No. 1 in that suit. By his judgment and order dated 31st March, 1970 the learned Civil Judge, Senior Division, decreed the suit and directed that defendant No. 1 (Laxman) shall within one month from that date put the plaintiff in possession of the property in the suit. If was not done, the plaintiff in that suit was to obtain possession through the Court.