HARI SINGH Vs. MOHAR SINGH

JUDGEMENT

(1.) THE facts giving rise to this revision petition against an order passed by the trial Court under Section 6 of the Specific Belief Act, directing the restoration of possession to Mohar Singh against Hari Singh, who had obtained possession under an order of an Executive Magistrate, who in proceedings under Section 145, Code of Criminal Procedure, had held him to be in possession at the disputed time, may be stated in some detail. On 8th July, 1966, Hari Singh brought an application under Section 145, Code of Criminal Procedure, against Jagmal Singh and others, but not including Mohar Singh, alleging that he had been dispossessed from the land in dispute, included in square No. 96, killa Nos. 3 to 7. This land admittedly belonged to the Panchayat. Both the contesting parties put up the claim that they were in possession thereof on the relevant date or within the prescribed time before that. On 15th July, 1966, the land was attached and notices were issued to the Respondents, - -vide copy Exhibit D. 5. On 2nd August, 1966, one Bhola Singh was made the Sapurdar of the crops that were standing.

(2.) ON 13th September, 1966, an application was made by Jagmal Singh that on 4th May, 1966, he had obtained lease from the village Panchayat for Rs. 740, that Mohar Singh was his co -lessee and both of them had cultivated the crop of Bajra worth thousands of rupees arid that he should be allowed to cut the crop. A copy of this application is not on the record, but the order (copy Exhibit D. 6) dated 20th September, 1966, passed by the Executive Magistrate; directed that Rs. 2,000 may be deposited by the second party; namely, Jagmal Singh, etc., and thereupon they be made the Sapurdars of the standing crop of Bajra. This amount was deposited and the second party; i.e.; Jagmal Singh etc., was made the Sapurdar in respect of the standing crop. It is obvious, therefore, that from that date onwards the second party was in possession of the land not on its own right, but merely as a Sapurdar.

(3.) THE suit, out of which the present revision has arisen, was filed on 28th November, 1968, claiming restoration of the possession on the ground that the Plaintiff, Mohar Singh, has not been dispossessed in due process of law. The trial Court held, after recording evidence of the parties, that Mohar Singh, who was admittedly in possession of the land in dispute on 12th August, 1968, was not a party to the proceedings under Section 145, Code of Criminal Procedure, and, therefore, he was not bound by the order passed therein. The trial Court also held that the final order of the Executive Magistrate dated 15th November, 1966, only made a declaration that Hari Singh was in possession of the land on the relevant date and that the Magistrate could issue warrants of possession if he had come to the conclusion that Hari Singh had been dispossessed within two months of the filing of the application. That finding not being there, the action of the Executive Magistrate in issuing the warrants of possession and in getting delivery of possession from Mohar Singh was without jurisdiction.