NAR SINGH Vs. BADRI SINGH

JUDGEMENT

(1.) This is a petition under Section 482, Cr. P. C. against the order of learned Additional Sessions Judge, Bali, in Cr. Revision No. 35/91 decided on 30-1-1992 by which he confirmed the order of learned ACM, Desuri in Cr. Case No. 20/89 decided on 19-8-1991.

(2.) The allegations are that on 11-7-89 petitioner Narsingh moved an application under Ss. 145, 146, Cr. P. C. before the Assistant Collector and Executive Magistrate, Bali camp Desuri, against Hari Singh, Gamana, Naring, Uda and Lada in relation to agricultural land bearing old Khasra Nos. 47 and 47/1. The new numbers of the said land are 73, 75, 76, 77 and 78. The old Khasra No. 47 was of 34 bighas and 5 biswas and 47/1 was well wherefrom the Khasra No. 47 was being irrigated. In the aforesaid land, petitioner had 1/4 share; Hari Singh had 1/4 share and the rest of 1/4 share was of non-petitioners. The petitioner in the aforesaid application averred that the division of the land had taken place between khatedars though the khatedari in the record was joint in nature of the tenants-in-common. It was further averred that the said Hari Singh at the commencement of the rainy season forceably dispossessed the petitioner from his land on the plea of entry of co-tenancy in the revenue record and thereby the danger of breach of peace on the question of dispute regarding possession of said land was existing. It was also averred that Hari Singh was a outlaw and was involved in murder case pending before the learned Addl. Sessions Judge. He along with his relatives was wandering with lathis and dhariyas and was threatening that in case the petitioner or his sons entered into the field, they would be murdered. A due inquiry was held by the learned Magistrate and on 11-7-89 he passed preliminary order under S. 145(1), Cr. P.C. After that he heard the parties and by order dated 25-7-89 he found the matter of emergency in terms of S. 146, Cr. P. C. and attached the disputed land and appointed the Tehsildar Desuri as receiver Gamna, Pakhiya, Narsingh, Gamna, Uda, Vagta and others filed a revision petition against this order before the learned Additional Sessions Judge who dismissed the same by order dated 7-8-90. Thus the preliminary order as well as the attachment order of the entire land in dispute was confirmed in the aforesaid revision petition and thereby both the aforesaid order merged into the order dated 7-8-90 passed by Addl. Sessions Judge, Bali. Though the res-pondents Nos. 1 to 4 were not recorded Khatedars yet they were the petitioners in the Revision Petition No. 18/89 and alleged that they had purchased the entire share viz. 1/2 of the entire disputed land, from the aforesaid khatedar through registered sale deed which was executed after the order of attachmennt. They pleaded that no division by metes and bounds of the land in dispute had taken place and the land was undivided. The aforesaid plea was made before the learned ACM by application for releasing the share of the disputed land for attachment. Whereupon the site was ordered to the inspected and by site inspection report dated 6-8-91 it was found that the land bearing Khasra Nos. 76 and 77 was joint belonging to both the parties. On the basis of this report the attachment order dated 25-7-89 was modified by the Magistrate by his order dated 12-9-91 to the effect that half portion of Eastern side belong to respondents Nos. 1 to 4 and the same was released from the receiver and the possession was ordered to be given to respondents Nos. 1 to 4 while possession of receiver on rest of 1/5 share was directed to be continued. The petitioner had cultivated the entire land which he had taken in auction by bidding highest amount of 3475/- for the Samvat year 2045 from the receiver. A revision was filed against the order dated 19-8-91 before the learned Sessions Judge who modified the order on 30-1-92 and dismissed the revision petition. Aggrieved from the order dated 19-8-91 of the learned Magistrate modifying the attachment order dated 25-7-89 and the order dated 30-1-1992 of the Additional Sessions Judge this petition has been submitted. Notice was sent to the respondents and record of the lower Courts was summoned.

(3.) I have heard the learned counsel for the parties at length.