PURAN Vs. KAPOORA AND ORS.

JUDGEMENT

(1.) THE question which calls for determination in this composite petition under Sections 482 and 401 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) is whether an Executive Magistrate who has put property under attachment under Section 146 of the Code, can lift attachment and release possession in favour of the party whom he finds under Section 145(4) to be in possession thereof on the date of the preliminary order under Section 145(1) of the Code.

(2.) FACTS of the case, when summarised, disclose that a parcel of agricultural land measuring 26 Kanals 8 Marias situated at village Manas, tahsil Kaithal, district Kurukshetra, became the bone of contention between Puran and others known as the first party and Kapoora and others known as the second party. The Station House Officer, Police Station Sadar Kaithal, reported on 17th April, 1978 that there was a dispute regarding possession over the said land between the two parties which was likely to lead to breach of peace especially when crops standing thereon were ripe for harvest. The police also requested that till the possession of either party was decided, the land and the standing crops be put under attachment. This report known as Kalandra is Annexure P 1 to the petition. On that report, the Sub -Divisional Magistrate, Kaithal assumed jurisdiction and initiated proceedings under Section 145 of the Code by passing a preliminary order, dated 27th April, 1973 (Annexure P. 2). Agreeing with the police Kalandra, he considered it essential to attach the land and the standing crop of wheat thereon, without specifically sanctioning it to be a case of emergency, and made it over to the Tahsildar, Kaithal as receiver till final decision of the complaint. Consequential order (Annexure P. 3) was communicated to the Station House Officer to effect the attachment till the decree or order of a competent Court determines the right of the parties and hand it over in the possession of the Tahsildar, Kaithal, who was the receiver. On issuance of notice to the parties, they put in their respective written statements and each party put in respective claim that it was in actual possession of the subject of dispute. The Sub -Divisional Magistrate then conducted inquiry under Sub -section (4) of Section 146 of the Code and came to the conclusion that the second party, that is Kapura and others, were in physical possession of the disputed land on the day when preliminary order under Section 145 of the Code was passed. That order is dated 31st July, 1978, which does not bear any annexure but may be termed as Annexure P. 4. All these orders have been challenged in this petition.

(3.) IN Mansukh Ram's case (supra) which is the latest in time, Kalyan Dutta, J. of the Rajasthan High Court observed as under: