GULABA RAM Vs. HIRI

JUDGEMENT

(1.) It is the judgment of Sessions Judge, Solan in Case No. 17-5/10 of 1987, decided on 17.9.1988, that has been challenged by the petitioners through this petition, under Section 482 read with Section 401 of the Code of Criminal Procedure (hereafter the Code ).

(2.) Briefly, thO facts are that Smt. Hiri (hereafter the respondent) moved an application under Section 145 of the Code in the Court of Sub Divisional Magistrate, Arkialleging that she is in possession of the disputed land, detailed in para 1 of the petition, after the death of her father Shri Surju, who died on 5.7.1980, and thereafter the death of her mother Smt. Bohru, who died on 13.4.1982. She has three sisters, namely, Narbda, Gita and Janki. According to her, all other sisters were living with their husbands in far of places, while she lived with her parents and looked- after them and the property also. Smt Shanti Devi allegedly obtained the mutation order in her favour relating to the property of Shri, Surju, deceased, by maintaining that she was also the daughter of the deceased, although: she was neither the daughter nor had any connection with the deceased nor with the property in question. After the mutation entry, she executed a sale deed in favour of the petitioners, whereupon mutation was also obtained. The sale has been assailed as a false document and it has been stated that there is serious apprehension of breach of peace qua the disputed property. Alongwith the complaint, number of document, were also filed and it was after the perusal of these documents that the Magistrate called upon the parties to file their objections and claims with regard to the land in dispute. The case of the petitioners is that Smt. Shanti Devi is also the daughter of the deceased Surju and she also succeeded to the estate after his death. Consequently, she executed a registered sale deed dated 27. 10.1982 qua her share in the estate and delivered the possession of the land to the vendee. Possession of the respondent in the disputed land has been denied and it has been stated that the respondent wants to take forcible possession of the land in dispute by initiating proceedings under Section 145 of the Code. In order to support their claims, the parties made use of documents and number of witnesses. In this case, the inspection of the spot was also done through the appointment of a. Local Commissioner. After looking into the matter quite extensively, the respondent's plea prevailed with the Magistrate and the result was that the petitioners were restrained from interfering in the possession of the land which was held in the occupation and possession of the respondent. The petitioners were also forbiddened from creating any disturbance as to this property. The matter came before the Sessions Judge, Solan, who declined to interfere with the order of Sub-Divisional Magistrate, Arki, and confirmed his findings and decision. Now, the matter has been brought to this Court by the petitioners.

(3.) Mrs. Pratima Malhotra, Advocate appearing for the respondent, has raised objection as to the maintainability of this petition in view of the fact that the petitioners have already exhausted the remedy available under Section 397 of the Code. The submission is that in view of the specific provision provided and exhausted under Section 397 of the Code, the judgment passed cannot be assailed either by way of a second revision or by invoking the inherent powers of this Court under Section 482 of the Code. This submission has been disputed by Shri G.D. Verma, learned counsel for the petitioners, who submits that even if remedy of revision is exhausted, petitioners can invoke the provisions of Section 482 of the Code.