BALDEV SINGH Vs. TULU

JUDGEMENT

(1.) This petition under Section 397/401/482 of the Code of Criminal Procedure read with .Article 227 of the Constitution arises out of proceedings under Section 145 of the Code initiated at the instance of respondent No. 1, Smt. Tulu, against the present petitioners in the Court of the Executive Magistrate, Rampur.

(2.) It appears to be the common case of the parties that the land comprised in Khata Khatauni No. 29/36, Khasra No. 34 and 35 measuring 3.13 bighas, situate in village Bohali, Mauza Koti, Sub -Tehsil Kumarsain was owned and possessed by one Shri Het Rain who died issueless. Smt. Tulu respondent No. 1 is the real sister of the said Shri Het Ram. In her application filed under Section H5 of the Code on 6 -10 -75 Smt. Tulu alleged that she along with her husband Nantia had been residing and looking after Shri Het Ram for about 16 years immediately before his death. She further alleged that as Shri Het Ram was quite old and unable to cultivate his land himself, the land mentioned above was under herself cultivation since during the life time of Shri Het Ram. She continued to cultivate this land even after the death of Shri Het Ram. She further alleged that Shri Het Ram during his life time had made a will bequeathing his entire movable and immovable property including the land in question in her favour. The petitioners, however, set up a false claim that Shri Het Ram deceased had executed a will in favour of Shri Baldev Singh petitioner and in assertion of this false claim the petitioners on 28 -9 -1975 forcibly entered into the disputed land after tying respondent No. 1 with a rope and cut and removed the maize crop standing thereon which had been earlier cultivated by respondent No. 1. The petitioners thereafter forcibly ploughed that land and would not permit respondent No. 1 to enter therein. Respondent No. 1 was, therefore, apprehensive of danger to her life from the petitioners who were large in number in case she cared to enter into her own land.

(3.) This application under Section 145 of the Code was presented by Smt. Tulu respondent No. I before the Executive Magistrate (Tehsildar) Rampur on 6 -10 -1975. The Executive Magistrate, Rampur called for the police report which was submitted to him on 31 -12 -1975. The police report appears to have supported the apprehension as expressed by respondent No. 1. The Executive Magistrate, Rampur, therefore, feeling satisfied that a dispute likely to cause a breach of the peace existed concerning the land in question, passed a preliminary order under Section 145(1) of the Code on 29 -1 -1926. This order is in Hindi and when translated in English it reads as under : "29 -1 -1976, This file has been received from the S. H. O. Rampur. It is found from the police enquiry that -there is a dispute with respect to Khasra Nos. 34/35 measuring 3.13 bighas situate in Chak Koti Sub Tehsil Kumarsain between Smt. Tuiu applicant and Baldev Singh etc. which is likely to result in breach of peace. Since both parties assert their own possession there is a possibility of an open -fight between them. Notices be, therefore, issued to both the parties directing them to appear in my Court on 2 -3 -1976 either in person or through counsel and to submit written statements with respect to actual facts. A copy of the notice be affixed on an appropriate place in the village. Summons be issued to all concerned. A. P. P. also informed."