DAY RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petition is directed against the Judgment of the learned AddI. Sessions Judge, Bhilwara dated 13-3-1980 whereby he has affirmed the orders of the learned S.D.M. Gulabpura dated 2-12-1978 and 29-12-1978 by which the learned S.D.M. has held that on the date when the preliminary order was passed i.e. on 7-9-1977 and two months prior to it, non-petitioner No. 1 was in possession of Khasra Nos. 646 and 647 in village Gainpura. The petitioner was restrained from interfering with the possession of the non-petitioner.

(2.) The facts necessary to be noticed for the disposal of this application (petition) are that the Khasra Nos. 646 and 647 are situated in village Gainpura. There was a dispute between the petitioner and non-petitioners about the possession over this land. The S.H.O., Shambhugarh reported to the S.D.M., Gulabpura that two partys claimed possession over this land and a breach of peace is likely to occur. He, therefore, filed complaint under section 145 Cr. P.C. requesting the learned S.D.M. to attach this land. The learned S.D.M. drew a preliminary order on 7-9-1971 holding that he is convinced that a dispute exists between the parties regarding the possession over the disputed land and it is likely to cause breach of peace. He, therefore, issued a notice under section 145(1) Cr. P.C. to both the parties to produce their evidence and affidavits in support of their claims. Actually, through a notice under section 145(1) Cr. P.C., the parties should have been called upon to file their claims as regards the possession. That notice has not been issued for calling upon the parties to lead their evidence. Be that as it may, the parties have filed their claims and, therefore, that opportunity need not be afforded afresh.

(3.) Mr. T.S. Champawat, learned counsel for the petitioner has submitted that no opportunity was provided to the petitioner to lead evidence. He has further submitted the affidavits filed in this connection cannot b. considered. On the other hand, Mr. A.L. Mehta, learned counsel for the non-petitioners has submitted that the parties have been afforded an opportunity to lead their evidence but they filled to do so. They only preferred to file the affidavits and that was enough. According to him, the parties were afforded an opportunity of hearing and after hearing the parties, the learned S.D.M. has decided this matter.