TARA SINGH Vs. GURDIAL SINGH

JUDGEMENT

(1.) THE facts giving rise to this criminal revision may be slated in some detail for the pro-per understanding of the point involved. Gurdial Singh and his three brothers -- Harbans Singh Sohan Singh and Sewa Singh -- together with Dal Singh purchased one-third share in an area mea-suring 588 kanals and 15 marlas comprised in khe-wat No. 52, khatauni No. 53 of the jamabandi of 1951-52 of village Bahri, Tehsil Thanesar, District Karnal, by a sale deed registered on 20-121955, for a sum of Rs. 3,000/ -. This sale was pre-empted by Tara Singh by a suit dated 18-12-1956, which was decreed on 11-12-1957, on payment of Rs. 4,300/ -. This amount was finally paid on 9-1-1958, within the time allowed by the decree. No appeal was filed against this decree and thus, the decree for possession by preemption of one-third share in the land detailed above became final. On 15-1-1958, an application for execution was filed and warrants for possession were issued by the civil Court concerned on 11-3-1958. The Girdawar went to the spot on 16-4-1958, for the execution of these warrants. In the presence of wadhawa Ram, member Panchayat, Sohan Singh Chaukidar and one Gian Singh, the judgment-debtors were summoned. Out of them, Gurdial Singh, Sewa Singh and Dal Singh appeared at the spot and they raised objection that out of the judgment-debtors Harbans Singh and Sohan singh had not been informed of this execution of the warrants because Harbans singh was employed in Malaya State and Sohan Singh was employed in the army and was posted in Mathura. This objection was noted, but as this was no impedement against the delivery of the possession, the Girdawar gave malkana possession of one-third share of 588 kanals and to marlas, by pointing out all the khasra numbers at the spot, to Gian singh son of the decree-holder who was his mukhtiar in the village. The report. Exhibit P. A. (on the civil file) was signed by Gurdial Singh and thumb-marked by sewa Singh and Dal Singh judgment-debtors who were present. It was also attested by the other witnesses present. On receipt of this formal report of the execution of warrants, the execution was filed as fully satisfied on 4-6-1958.

(2.) LATER on, when Tara Singh decree-holder tried to plough the land. Gnrdial Singh and Sewa Singh, out of the erstwhile judgment-debtors, tried to interfere and on this, a report was lodged by Tara Singh on 5-6-1958, at Police Station Thanesar, that he feared breach of peace at the hands of the aforesaid Gurdial Singh and sewa Singh and proceedings were consequently taken against both the parties under Sections 107/151. Criminal Procedure Code. On 22-7-1958, Gurdial Singh made an appli-cation before S. Sher Singh, magistrate 1st Class, before whom proceedings under Sections 107/151 were pending, that the police had prevented Gurdial Singh and Sewa Singh on 21st July 1958, from cultivating the land, and prayed that the police should be directed not to interfere in their cultivation of the land. After inviting a report from the Station house Officer, Thanesar, the learned Magistrate ordered that the land be attached forthwith and parties be directed to file their claims on 12-8-1958. This order was duly got served on the parties and the land remained attached thereafter. Affidavits were filed on both sides. On the side of Gurdial Singh affidavits were filed only by the two persons concerned, and in these affidavits they had stated that they had never been dispossessed of the land by the girdawar Qanungo and that they had been "in possession since long". On the other side, Dal Singh, one of the judgment-debtors in the original preemption case, who had one-half share in the land in dispute, stated that the land at the time of execution of the warrants of possession was lying vacant and that he had given over the possession of his share to the decree-holder and that the possession over the remaining share of the other judgment-debtors was also taken over by the decree-holder who had continued to be in possession thereof. To the same effect were the affidavits of Tara Singh, his son Gian Singh and wadhawa Ram, member Panchayat, who was one of the attesting witnesses of the report, Exhibit P. A. The Girdawar Qanungo was the only witness examined by the learned trial Court. He fully supported the affidavits filed by Tara Singh and his son. Inter alia he stated that the objections raised by Gurdial Singh and Sewa Singh were noted and one of the points urged by them was that there was some dispute still outstanding with regard to the boring charges and that for this reason possession should not be given, that symbolical possession was given of the land in suit, which was one-third share in 5s8 kanals and 15 marlas by pointing out, and that actual possession by ploughing could not be given because the warrants of possession were in respect of a share in the whole land. Ho also confirmed that at the time of the execution of warrants, the land was lying absolutely vacant because the rabi crop had already been cut. The learned trial magistrate declared that Gurdial Singh and Sewa Singh were in actual possession of the land, and observed as follows:

(3.) THE facts established on the record and the law applicable to such facts are;