RAMCHARAN Vs. YOGENDRA SINGH

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (In short, the Code), the petitioners have called in question the legality, validity and propriety of the impugned order dated 02/07/11 passed by I Additional Sessions Judge, Vidisha in Criminal Revision No.61/11 affirming the order dated 25/04/11 passed by the Sub Divisional Magistrate, Kurwai, District Vidisha in Criminal Case No.12/2008/ Section 145 of the Code whereby an order directing delivery of the possession to the respondent herein has been passed.

(2.) The facts necessary for adjudication of this matter are that the respondent herein filed an application on 23/10/08 under Section 145 of the Code before the SubDivisional Magistrate, Kurwai, District Vidisha. The SDM passed an order under Section 145(1) of the Code and issued notices to both the parties. On the same day, an order under Section 146(1) of the Code directing the OfficerinCharge of the Police Station, Kurwai to deliver the disputed land in supardgi to Anwar Khan s/o Dildhar Khan was passed. On 18/11/08, the petitioners herein have filed an application for change of receiver and by allowing the application on 29/01/09, Laxman Singh was appointed as receiver. Thereafter, after affording opportunity of being heard to both the parties, the SDM by an order dated 25/04/11 held that the respondent herein is the owner and in possession of the land in dispute and directed to the supardgidar, Laxman Singh to handover the possession to the respondent herein. The order dated 25/04/11 was tested before the Additional Sessions Judge, Vidisha in Criminal Revision No.61/11 by the present petitioners. The Revisional Court by the impugned order dated 02/07/11 dismissed the revision and maintained the order passed by the SDM, Kurwai. Being aggrieved by both the orders, this petition has been preferred by the petitioners herein.

(3.) Shri Rajmani Bansal, learned counsel for the petitioners submits that there was no material before both the Courts below which shows that the respondent herein was in possession and on the contrary, the material shows that the petitioners are in possession. Section 145 of the Code is applicable only when the person is in possession of the disputed property but in the present case, the petitioners herein are in possession of the disputed property and on the basis of this factual matrix, the Apex Court granted stay in favour of the petitioners herein. The suit property was attached from the possession of the petitioners. Therefore, an order passed directing the delivery of possession to the respondent herein is illegal and arbitrary. It is further submitted that the Magistrate while deciding the proceedings under Section 145 of the Code has to decide which of the party had been in possession on the date of preliminary order and within two months next before it. The SDM has not conducted any enquiry as required under proviso to Section 145(4) Code. In absence of any material to show that land was in possession of the respondent herein on the date of complaint or soon before it, Section 145 of the Code could not have been invoked and the remedy is only to file a civil suit for restoration of the possession. He has placed reliance on the following decisions: