PARTAP SINGH Vs. STATE

JUDGEMENT

(1.) THIS criminal revision which arises out of proceedings under Section 115, Criminal Procedure Code, was referred to a Division Bench because our learned brother Gurdev Singh J. was not inclined to agree with what his Lordship termed as a wide proposition laid down in Sayed Salahuddin Ahmad v. Janki Mahton, AIR 1957 Pat 549.

(2.) BRIEFLY stated the facts of the case are that there was some dispute regarding posses sion of 14 plots of land measuring in all 39 bighas 14 biswas which were at one time evacuee property. Proceedings under Section 145, Criminal Procedure Code, were initiated at the instance of the police By his order dated the 25th of July. 1963 the learned Magistrate held that it was the first party, namely, Prabhu, Data Ram, Munshi, Ramu, Bhartu, Mohan, Roop Chand, Udmi, Budha Amar Singh, Teka and Bhima who were in actual possession of the land in dispute on 1st of December. 1962, the date of preliminary order. The Magistrate accordingly ordered the possession to be delivered to first party and directed the second party, namely, Partap Singh not to interfere with the peaceful possession of the first party unless the first party was evicted in accordance with law. The case set up by Partap Singh, the second party was, that the said plots of land were allotted to him and Mohan Lal on 5th of January 1961 by the Ministry of Rehabilitation and the possession thereof was delivered to them by the Managing Officer on the spot on 3rd of June 1962. It was further contended by Partap Singh that intimation about delivery of possession was sent to the Tahsildar on 4th of June 1962 and entry regarding transfer of possession was made in Roznamcha on 12th of June 1962. Preliminary order was passed under Section 145 (1), Criminal Procedure Code, on 1st of December 1962. The learned Magistrate after going through the material on record held that the second party had failed to establish beyond doubt that possession over all the 14 plots was delivered to him. He further held that even if the possession of all the 14 plots has been delivered on 3rd of June 1962 it was of no avail to the second party since the actual possession on the date of preliminary order alone had to be taken into consideration under Section 145, Criminal Procedure Code. In the end the learned Magistrate concluded that on 1st December 1952 the actual possession of the disputed plots was with the party No. 1. Aggrieved by this order Partap Singh filed a revision petition before the Additional Sessions Judge. The learned Additional Sessions Judge following the decision of Sayed Salahuddin Ahmad's case, AIR 1957 Pat 549 held that since the properly was evacuee property the provisions of Section 145, Criminal Procedure Code, did not apply. In this view the learned Additional Sessions Judge recommended to this Court that the proceedings taken by the trial Court under Section 145, Criminal Procedure Code, and the order of the learned Magistrate made in this behalf be quashed. When the matter came before Gurdev Singh J. his Lordship expressed some doubt as to the correctness of the rule laid down in the Patna decision and as slated above the case was referred to a Division Bench. This is how the matter has come before us.

(3.) IT is not disputed before us that the property in dispute was at one time evacuee property but was later acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954. and became part of the compensation pool, constituted under Section 14 of the said Act. In view of this it is not necessary to express our views directly regarding I the Patna decision which turns on the provisions of the Administration of Evacuee Property Act. We say "directly" because we have been asked to hold that the same principle applies to properties vesting in the Central Government under Section 12 of Displaced Persons (Compensation and Rehabilitation) Act 1954. The learned Magistrate rightly held that he had for the purposes of Section 145, Criminal Procedure Code, to decide as to which of the parties was in actual possession on the date of preliminary order made under Section 145 (1) that is the 1st of December 1962. No doubt by virtue of second proviso to Sub-section (4) of Section 145, Criminal Procedure Code, if it appeared to the Magistrate that any party had within two months next before the date of the preliminary order been forcibly and wrongfully dispossessed, he could treat the party so dispossessed as if he had been in possession on the date of the preliminary order, but that also could at the most, require determination of the position only on a day two months next before the date of the preliminary order. The allegation of the second party, namely, Partap Singh that the actual possession was obtained by the allottees from the Managing Officer on 3rd of June 1962 would, therefore, be not decisive of the issue. The learned Magistrate, therefore, rightly went into the question of actual possession on the date of the preliminary order.