MOOL CHAND Vs. ROOP CHAND

JUDGEMENT

(1.) This revision u/s. 397 is directed against the order of learned Sub-Divisional Magistrate, Bhinmal dated 30-7-1982 whereby he has ordered the Tehsildar Receiver to deliver the possession of, disputed plot to Roop Chand, legal representative of Mishrilal.

(2.) Brief facts which give rise to this revision are that on 29-11-1968 proceedings u/s. 145 Cr.P.C. were initiated by Mishrilal s/o Mavji against Tejkanwar, Kishore Singh and Mool Chand before the Sub Divisional Magistrate, Bhinmal. It was alleged by party No.1 Mishrilal that the disputed plot was in his possession since I long, the party No.2 threatened to dispossess them from the disputed plot with an allegation that they have purchased the same and there was an apprehension of breach of peace. Upon which, proceedings u/s. 145(1) were drawn and both the parties were given opportunity to file their respective claim. The plot was attached by the order dated 20-7-1974 and the S.B.O., P.S. Bhinmal was appointed as a receiver. The parties produced their witnesses, affidavits of their witnesses in support of their claim, the witnesses were cross examined and after hearing the S.D.M., Bhinmal vide his order dated 5-10-1979 declared that Mishrilal Sb Mavji was in possession of the disputed plot Mool Chand, the party No.2 filed a revision No. 37/79 before the learned Sessions Judge, who remanded the case back vide his order dated 28-3-1980 with a direction to decide afresh. Under remand, the S.D.M. Bhinmal registered the case No. 28/80 and after considering oral and documentary evidence gave finding that within two months of the passing of the preliminary order the applicant Mishrilal was in the possession of the disputed plot. Tehsildar, Bhinmal was appointed as receiver vide order dated 30-7-1982. Being aggrieved by the order of learned S.D.M. Mool Chand, Party No.2 has filed this revision.

(3.) Mr. H.M. Parekh, learned counsel for the petitioner has contended that the proceedings u/s. 145, Cr.P.C. are misconceived as only the civil court is competent to determine the rights of the parties. He has also submitted that once the title of Mool Chand over the plot in dispute has been established by the judgment of the civil court EX.D-2 dated 31-5-1958, and further by the sale deed Ex.D-8 executed by Kishore Singh S/o Ranjit Singh in favour of Mool Chand, the initiation of proceedings u/s. 145 by Mishrilal, Party No.1 in the year 1968 were illegal and liable to be set aside. In support of his contention, he has relied upon Ram Sumer Pun Mahant v. State of UP., Arvind Singh v. State of Raj., Udmi Ram v. Dharam Singh, and Shyam Sunder v. State of Raj..