HAZAN Vs. SHEOJI

JUDGEMENT

(1.) This revision petition is directed against the order dated 11.11.1994, passed by the Sub-Divisional Magistrate, Tonk, by which the learned Executive Magistrate held that the Party No.1 is in possession over the land bearing Khasra No. 383, measuring 8 Bighas 12 Biswas and the Party No.2 never remained in possession over this land.

(2.) It is contended by the learned Counsel for the petitioners that a decree was passed by the competent Civil Court holding that the land in question is a GAIR MUMKIN TALAB land and the villagers arc in possession of that land and that Decree was passed on the basis of a compromise arrived at between the parties. It has, also, been contended by the learned Counsel for the petitioners that when once the rights of the parties have been adjudicated by a competent Civil Court then the Party No.1 cannot he permitted first to raise the dispute and then to pray for attachment of the property and appointment of the Receiver. Learned Counsel for the non- petitioners, on the other hand, have supported the order passed by the Court below and submitted that the question before this Court is very limited and that too only with regard to the possession over the land in question and admittedly, from the evidence produced by the parties, the possession over the land has been proved to be that of the Party No.1. The second contention, raised by the learned Counsel for the respondents is that the earlier Decree was against only one person and the remaining twenty-two persons cannot be bound-down by that decree.

(3.) Before considering the submissions made by the learned Counsel for the parties. I would first like to give some facts of the case which have given rise to the present controversy. The Station House Officer, Police Station, Pachewar, on 26.8. 1991, filed a complaint in the Court of the learned Sub-Divisional Magistrate, Tonk, on the allegations that in village Rataliya Tehsil Malpura, there is a land bearing Khasra No. 383 measuring 8 Bighas 12 Biswas and another land bearing Khasra No. 387 measuring 17 Biswas, which arc shown as the Talab. Party No.1 Sheoji and others, alleged it to be their Khatedari land and the party No.2 alleged the same as the land reserved for the pond and there is an apprehension of breach of the peace with respect to this land and, therefore, as the Party No.1 intends to cultivate this land while the Party No.2 objects for the cultivation of the land, the apprehension of breach of peace is there. It has also, been a alleged in the complaint that several cases arc pending between the parties. The learned Sub-Divisional, Magistrate, on filing of this complaint, drew a preliminary order and ordered for attachment of the property in dispute. Both the parties were given opportunities to produce the evidence. The learned Excsutive Magistrate, after trial/enquiry, held that Party No.1 is in possession over the land of Khasra No. 383 measuring 8 Bighas 12 Biswas and so far as 17 Biswas of land Khasra No. 387 is concerned, the trial Court observed that this is a land of common villagers. I have considered the submissions made by the learned Counsel for the parties.