HAMIR SINGH Vs. BHAG SINGH

JUDGEMENT

(1.) THIS judgment will dispose of Criminal Misc. No. 216-M of 1992, 218-M of 1992, 220-M of 1992 and 1045-M of 1992, the facts having been taken from the first noted case. The present litigation has a long and chequered history.

(2.) THE Dirba Police submitted a report to the Executive Magistrate, Sunam, that there was a dispute between the parties herein regarding land measuring 568 Kanals, 1 Marla, situated in the area of village Khanal Kalan and as there was an imminent danger of breach of peace, the property in dispute be attached and a receiver appointed. The Magistrate issued notices to the parties vide his order dated 18th October, 1985, calling upon them to appear before him on 5th November, 1985 and to produce evidence in support of their respective claims. On the same day, he also passed an order under section 146 of the Code of Criminal Procedure (in short the 'Code') attaching the land in dispute and appointing the Naib Tehsildar, Sunam, to take possession thereof and to harvest the crop, to dispose of the same and to deposit the sale proceeds. It was also directed that the receiver so appointed was authorized to keep possession of the land in dispute till such time an order of a competent court decided the matter. As the Naib Tehsildar was not willing to take up the assignment, Mr. Baldev Singh, Office Kanungo was substituted as receiver vide order dated 19th November, 85. It appears that one Dev Singh (who is not a party in the present proceedings) who had the same interest as the present petitioners, filed a writ petition in this court challenging the attachment of 28 kanals, 17 marlas out of the entire land and in view of the orders of this court dated 14th May, 1985, the Executive Magistrate, Sunam, dropped the proceedings qua this land. Subsequently, vide order dated June 30, 1986, the said Magistrate also dropped the proceedings regarding the rest of the land but failed to pass any order regarding the restoration of its possession. This order was, accordingly, challenged in a revision petition before the Additional Sessions Judge, Sangrur, who vide his order dated 23rd of February, 1987 directed the restoration of possession to the petitioners herein i.e. Bihla Singh son of Sawan Singh and Sawan Singh son of Ha (sic.) Singh, two of the members of one of the contesting parties. This order of the Additional Sessions Judge, Sunam was further challenged by one Bhag Singh and others in this court and Hon'ble Mr. Justice I.S. Tiwana, allowed the revision petition on 25th May, 1987, and issued a direction to the Executive Magistrate, Sunam, who had dropped the proceedings under section 145 of the Code vide his order dated 30th June, 1986 to reinvestigate the matter and to pass a specific order as to whom the possession of the land was to be restored. The matter was, accordingly, put before the Executive Magistrate, Sunam and subsequently transferred to the Sub-Divisional Magistrate, Barnala, who heard the parties and vide order dated 8th September, 1987 held that the petitioners had not been able to establish a valid claim with regard to their possession of the land in dispute at the time when it was attached and, accordingly, directed that the possession of the land in dispute be handed over to the respondents herein. The said order of the Sub-Divisional Magistrate, was once again challenged before the Additional Sessions Judge, Sangrur, who on 15th July, 1988 set aside the same and remanded the case to the said Magistrate for decision afresh. The matter once again came up before the concerned Sub-Divisional Magistrate, who after considering the evidence adduced by the parties gave a finding in his order dated 30th July, 1990 that neither of the parties had been able to prove their possession over the disputed land except for the area 28 Kanals, 17 marlas which was in possession of Dev Singh and further that the land be attached under section 145 of the Code until a competent court could determine the rights of the parties with regard thereto. He also appointed Tehsildar Sunam as a receiver of the property. Aggrieved by this order, two revision petitions by each of the parties were filed before the Sessions Judge, Sangrur, who in his order dated 12th October, 1991 upheld the order of the Sub-Divisional Magistrate, holding that on the evidence as it existed, it was not possible to determine as to which party was in possession of the land in dispute when the first attachment had taken place. The learned Sessions Judge observed that the revenue record in the shape of khasra girdawris and jamabandis produced by the petitioners could not be relied upon as in another litigation between the parties inter se before Sh. D.S. Chhina, Sub Judge 1st Class, Sangrur, the Court had recorded a finding that this record was unreliable and that the khasra girdawris entries appeared to have been made in a casual manner. Aggrieved by the aforesaid order, four applications under section 482 of the Code have been filed two each by the contesting parties.

(3.) MR . Mangat, learned counsel for the respondents, has however, raised a preliminary plea that in the light of the judgments of the Supreme Court including a Division Bench decision reported in Dharampal and others v. Smt. Ramshri and others, 1993 SC 1361, that section 397(3) barred a second revision and hence such a petition camouflaged as an application under the garb of section 482 of the Code, was not maintainable. Mr. Mangat has further urged that as the concurrent findings of fact had been recorded by the authorities below that it was not possible to determine the right to possession of the property at this stage, no interference was called for in the present proceedings.