SURAJMAL Vs. RAMNARAYAN

JUDGEMENT

(1.) THE Additional Sessions Judge, Tonk vide his judgment dated 30th January, 1973, by which he decided the revision petition No. 23/ 1972 has referred the matter to this Court for quashing the order of the Sub-Divisional Magistrate, Malpura, which is as under : "receiver dono pakshkaran ko mutnaja ka kabja Shamlati me wapis supard karawein. "

(2.) KHASRA Nos. 539 & 540, situated in Viliage-Lamba were purchased by Sheokaran, from Narain son of Birsha Goojar for Rs. 4000/- on 28th May, 1970. Sheokaran, claims himself to be in actual physical possession of the land. According to him, no other person has any connection whatsoever with this land. KHASRA Nos. 500, 501, & 502 situated in Village Lamba Kalan, were purchased by Surajmal, brother of Sheokaran, from Sheoji, on 28th May, 70. Surajmal claims himself to be in exclusive possessson of the purchased land.

(3.) ACCORDING to the provisions of the old Cr. P. C. when the Magistrate is satisfied from the police-report or other information that a dispute likely to cause a breach of peace, exists, concerning any land, within the local limits of his jurisdiction, he shall make an order in writing requiring both the parties to attend his court in person or by pleaded, for putting their respective claims with regard to that land, and also regarding actual possession of the subject-matter in dispute. And, then the Magistrate shall inquire and decide the question whether any or which of the parties at the date of the order before mentioned in such possession of the said subject. If the Magistrate decided that one of the parties was in possession of such disputed property, he shall issue an order declaring such property to be entitled to possession thereof until evicted therefrom in due course of law. If the Magistrate is of the opinion that any of the parties was in such possession, and he is unable to decide as to which of parties was in such possession, then, he may proceed u/s 146 Cr. P. C. by attaching the disputed property and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of Competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order. Thus, according to the provisions of old Cr. P. C, if the Magistrate finds after inquiry that one of the parties is in possession of the disputed property, he shall pass an order u/s. 145. Cr. P. C. but, in case, he is unable to decide the question of actual possession then, the matter would be referred to a civil court, as envisaged in S. 146, Cr. P. C.