HEERA SINGH AND OTHERS Vs. THE STATE

JUDGEMENT

(1.) This is a report under Sec. 438 of the Code of Criminal Procedure made by the District Magistrate, Alwar, recommending that the order of the Sub-Divisional Magistrate dated 28th July, 1960, whereby the Magistrate ordered under Sec. 145 of the Code of Criminal Procedure the restoration of possession of certain lands to Gokulchand, be quashed.

(2.) The circumstances out of which the present controversy arises are that on 24th July, 1959, an application was made by the Station House Officer, Police Station, Kathumar under Sec. 107 of the Code of Criminal Procedure against 8 persons, namely, Heera Singh, Ganpat, Ganeshee, Kulfa, Kallu Dashrath, Shivlal and Hurmath. It was alleged in this application that in Tehsil Laxmangarh Khasra Nos. 1711, 343, 395, 478 and 479 measuring 16 Bighas which was evacuee property was allotted to Gokalchand by the Managing Officer, Alwar, by his order dated 25th June, 1959. Possession of this 16 Bighas of land was given to Gokul Chand on 28th June 1959, in the presence of Quanango and Patwari Halka Tassi. On 16th July, 1959, Heera Singh and party forcibly ploughed field No. 1711. On 17th July, 1959, when Gokul Chand went to plough his land then Heerasingh and party obstructed him, and were bent upon creating a breach of the peace. The Sub-Divisional Magistrate on his application under Sec. 107 of the Code of Criminal Procedure converted the proceedings under Sec. 145 of the Code and asked the parties to put in their claims, issued a preliminary order, attached 16 Bighas of land and appointed Tehsildar Kathumar to be the Receiver of the land in dispute. Both the parties presented their respective written statements. Heerasingh and others said that they have been in possession of the land in dispute for a long time and they were in possession thereof on the date of the preliminary order. Gokalchand on the other hand pleaded that by the Managing Officer's Order No. 9320 dated 25th June, 1959, the Naib Tehsildar Kathumar directed that possession of the disputed land be given to him and the Naib Tehsildar also gave him a patta - a formal deed of lease. On 28th June, 1959, the Patwari Girdawar and Quanango went on the spot and delivered possession of the land in question to him. Seventeen or eighteen days thereafter when he went to cultivate the land then the party of Heera Singh were bent upon creating a breach of the peace and obstructed Gokalchand from cultivating the land. On an examination of the documentary evidence the learned Sub-Divisional Magistrate declared the possession of Gokalchand of the land in dispute and further ordered that the possession be restored until he was evicted in due course of law. He further ordered that whatever amount of money was realised during the course of Receivership may be given to Gokalchand after deducting necessary charges. The learned Magistrate repudiated the contention urged on behalf of Heerasingh and party that no proceedings under Sec. 145 of the Code of Criminal Procedure lay in respect of the land in dispute as it was an evacuee property. The case of Salahuddin Ahmad Vs. Janki Mahton, A.I.R. 1957 Patna 549 has been discussed by the learned Magistrate and he has respectfully disagreed with the said decision.

(3.) Heerasingh and others preferred an application by way of revision before the District Magistrate, Alwar. Largely relying on the decision of the Patna case, A.I.R. 1957 Patna 549, the learned District Magistrate has recommended that the order of the Sub-Divisional Magistrate be set aside as he had no jurisdiction to exercise his powers under Sec. 145 of the Code of Criminal Procedure in respect of the land which was admittedly an evacuee property.