S.N. Pathak, J.@mdashThis quashing petition is directed against the order dated 21st April 1997 passed by Sri R.B. Pathak Executive Magistrate, Katihar, in Case No. 188 (M) of 1994 u/s 145 of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code'').
2. The case of the Applicant before the Executive Magistrate was that Anup Kaur obtained a registered deed of gift from her maternal uncle Mukhchand Singh who was recorded tenant over plot No. 1275, having an area of 8 decimals. The consolidation authorities also recognised the right and title of Anup Kaur. Subsequently, other members of the first party before the Executive Magistrate, one of whom is the Applicant here (Hanuman Prasad Agrawal) were purchasers of the suit plots from Anup Kaur and so they were claiming the disputed plot on the basis of that purchase from Anup Kaur. It was further admitted case of the parties that in the revisional survey record of right, Mukhchand Singh was shown as the recorded tenant and the concerned plot was shown in illegal possession of Jagdish Singh, husband of Anup Kaur. So it was claimed by the members of the first party before the Executive Magistrate that the first party was in possession of the disputed plot and the O.P. (O.P. before this Court), were unnecessarily putting obstacles over the disputed land held by the first party.
3. The case of the opposite party (Respondents here) is that the disputed plot was the property of the Estate of Lakshmeshwar Singh and Jagdish Singh was the eldest surviving heir of Lakshmeshwar Singh and Mukhchand Singh was the employee of the estate and, therefore, he got his name entered in the revisional survey by some device, and so, the survey record in his name was wrong. Jagdish Singh was the eldest member and his other members (O.P. in the lower court and the Respondents here) were minors when the survey record of rights was prepared. However, Jagdish Singh and his other brothers (O.P. in the lower court) entered into partition in the year 1970 and the disputed land fell to the share of the O.P. and Jagdish Singh got homestead land in lieu of plot No. 1275. The O.Ps. were mutated and the Circle Officer and the Circle Inspector found the said land to be in their possession.
4. The Executive Magistrate, after examining the documentary and the oral evidence, adduced by both the parties, declared that the members of the O.P. (Respondents here) were in possession of the disputed land and so he directed the first party (Applicant here) to refrain from disturbing the peaceful possession of the O.P. Against this order, Applicant Hanuman Prasad Agrawal, who is one of the members of the first party, has come to this Court.
5. Before I proceed to examine and scrutinise the lower court''s judgment, it would be worthwhile to state in precise terms the law governing the proceedings, u/s 145 of the Code. Proceedings under this Section are primarily meant to prevent the breach of peace and normally it is the actual physical possession of a party in dispute which is to be decided. The Magistrate in seisin of the proceedings decides the actual physical possession of a particular party two months prior to the initiation of the proceeding u/s 145 of the Code. That is exactly the law which is considered in deciding such proceedings. It is further to be mentioned at this stage that title or rights of possession of a particular party cannot be decided in a proceeding u/s 145 of the Code nor this can weigh with the decision of a Magistrate in disposing of such proceeding. Now I shall advert to the order passed by the Executive Magistrate in the backdrop of above legal principles.
6. I find that on behalf of the first party (Applicant here), the registered-deed of gift executed, by Mukhchand Singh and the survey record of right and orders passed by the consolidation authority constituted the main planks of right, title and interest of the first party. In this connection, the deed of gift was in favour of Anup Kaur and the survey record of right was in the name of Mukhchand Singh and, perhaps, the order of Consolidation Officer was also in favour of Anup Kaur. The Applicant here was one of the purchasers from Anup Kaur. So the moot question before the lower court was whether the purchasers from Anup Kaur had, of course, come in possession of the disputed plot. It is also significant that only one member of the first party, namely, Hanuman Prasad is the Applicant. The survey record of rights, had shown the illegal possession of Jag-dish Singh, full brother of the O.P. in the lower court. It is significant to note that Anup Kaur was not found to be recorded as possessing illegally the disputed land. It was the contention of the O.P. that since the disputed land was the estate of Lakshmeshwar Singh and Mukhchand Singh was the servant who had wrongly got his name entered, the survey record had shown the possession of one of the heirs of Lakshmeshwar Singh. This contention appears to have some force in it. So far the deed of gift is concerned, it was executed in the year 1965 by Mukhchand Singh, perhaps, on the strength of his record of right, in the revisionai survey Anup Kaur has pleaded that Mukhchand was her maternal uncle, but in the petition filed before the Superintendent of Police, Katihar, she had mentioned Mukhchand Singh as her God-father (Dharmpita). This petition dated the 19th September 1994 is on the record of the lower court. This document has been mentioned by the Executive Magistrate also as stated to by the O.Ps. during the course of hearing. If Mukhchand Singh was maternal uncle of Anup Kaur, as pleaded by her, there was no occasion for her to refer to him as her God-father. So there is some force in the contention of the'' O.P. also that Mukhchand Singh was simply a servant of the Ex-landlord and not the maternal uncle of Anup Kaur. So if Anup Kaur got a deed of gift in her name by Mukhchand Singh, she should have obtained mutation in her favour, but; no mutation paper has been filed, except certain receipts which will not in themselves be a proof of possession of Anup; Kaur independent of mutation papers. It was the contention of the O.P. that Jagdish Singh had given plot No. 1275 to his brothers (O.P. here) and he had got other lands. In this connection, certain papers were filed and the Executive Magistrate took note of the same. On behalf of the first party (one of the Applicants before this Court), Batwara chart was filed in which plot No. 1275 was not included and'' on this basis, it was submitted that plot No. 1275 was exclusive property of Anup Kaur; but it is to be noted that the concerned partition took place in the year 1970 and Anup Kaur had obtained deed of gift in the year 1965; whereas the revisional survey record was prepared in the year 1958 in which Jagdish Singh, husband of Anup Kaur was shown in illegal possession. The law is that any property in the name of any co-parcener shall be deemed to be the family property, unless it was shown to be independent acquisition of the concerned member. Since there was a case of partition among the co-sharers of Jagdish, the illegal possession of Jagdish over the disputed plot which was originally the property of Lakshmeshwar Singh would be deemed to be family property of Jagdish Singh and his brothers. So if this property was divided among the co-sharers, the person who gets this property in partition, would be deemed to be in possession. On behalf of O.P. a paper in this connection was of course, filed.
7. Now the question is whether the Executive Magistrate committed any error in his decision regarding actual physical possession of the parties to the proceeding. I find that the Executive Magistrate discussed the oral evidence of both the parties and he also discussed the documents filed by both the parties and so far the oral evidence is concerned, nine witnesses were examined on behalf of the O.P. and 6-7 witnesses were examined by the first party also. Some of the witnesses of the first party had admitted that there was a partition among the co-sharers of Jagdish Singh in the year 1970. Of course, they had said that the disputed plot was not included in the partition Paper. But the very fact that partition paper was filed on behalf of O.P. regarding the disputed plot which was allegedly allotted to them will indicate that, of course, there was a partition among the co-sharers of Jagdish Singh. So the fact of the disputed plot being in possession of Jagdish Singh in the survey record of right, its inclusion in the partition among the co-sharers treating it as 6 family property; gets probability. Moreover, Anup Kaur, as admitted by some witnesses of the first party and as mentioned in her own petition to the Superintendent of police, Katihar, which gave rise to the proceedings under Sections 144 and 145 of the Code was living outside her village at Delhi, along with her family members. Her petition addressed to the S.P. was dated 19th September 1994 and the proceeding u/s 144 of the Code was initiated on 25th November 1994 on the Police report dated 9th November 1994. So it transpires that on the petition addressed by Anup Kaur, the S.P. might have directed ah enquiry and on the report of the police, the proceedings u/s 144 of the Code was initiated which was later converted into a proceeding u/s 145 of the Code. From the aforesaid circumstance, it would appear that Anup Kaur living at Delhi would not be expected to be exercising her possession over the disputed land and members of the O.P. who are her Dewars, would not be sitting idle and allow her vendees to take possession of the disputed land. It appears from the memo of the quashing application that the members of the O.P. who were the vendees from Anup Kaur, acquired the disputed land in various areas by the sale-deeds in the year 1995. The O.Ps. were claiming the disputed land by virtue of partition in the year 1970 itself and it had transpired during the course of evidence in the lower court and the husband of Anup Kaur died in the year 1980. So the circumstances indicate that Anup Kaur might have shifted to Delhi along with her sons etc. after the death of her husband and she'' made the sale-deeds in favour of members of the first party in the year 1995, just to wash her hands off from the litigation with agnate or cognates. The circumstances on-the record therefore, also indicated that neither Anup Kaur was in possession of the disputed land nor her vendor might have been allowed to enter possession on the basis of aforesaid sale-deeds. These circumstances apart, the oral evidence adduced on behalf of the first party and the second party was analysed by the Executive Magistrate threadbare and the Executive Magistrate came to the definite conclusion that the members of the second party (O.P. here) were in actual physical possession of the disputed land. Their possession was confirmed by the report of the Circle Officer, as it has been mentioned in the impugned order of the Executive Magistrate. Perhaps, the mutation papers were also in favour of the oposite parties as they had filed before the lower court. Now so far the claim of the possession of the first party is concerned, much emphasis was laid on the consolidation order. In this connection, some decisions, were cited by the Applicant before this Court. The first decision was reported in 1987 BLJ X 281 : 1986 PLJR 1176. In this decision, the party concerned had obtained preliminary decree in his favour and the final decree proceeding was abated by the Notification of the Consolidation Officer. The appeal filed against the preliminary decree was also dismissed. The objections taken before the Consolidation Officer by the Defendants of the suit were also rejected by the Consolidation Officer. So in the reported case, it was held that findings of the possession and title given by the Consolidation Officer was final. The facts of the present case which I have enumerated above, do not fit in with the reported case (supra). This is so because the civil court held the title and possession of the Plaintiff. The Consolidation Officer respected this finding of the Civil Court and declared the title and possession of the Plaintiff, on the basis of Civil Court''s decree. So there was a conclusive finding of possession in favour of the Plaintiff and so initiation of the proceeding u/s 145 of the Code was quashed and the instant case has not been filed against the initiation of the proceeding; but against the final order passed. In the reported decision itself, there is a sentence to the effect:
A criminal court, while acting under the provisions of Section 145 Code of Criminal Procedure, cannot ignore and has to respect the order passed by a civil court, unless it is of remote past.
In the instant case, when emphasis was being laid on the consolidation order in favour of Anup Kaur, the moot question was as to what was the period of that order passed by the Consolidation Officer.
Admittedly, the order in this connection was not in favour of other members of the first party, one of which is the Applicant before this Court. So the order of the consolidation Officer in favour of Anup Kaur and its period. was very much relevant and it was certainly not the period in close proximity to the initiation of the proceeding u/s 145 of the Code. So the facts of the reported case are not similar to the facts of the present case. Another decision referred to was the same as reported in 1984 BBCJ 316. In this case it was decided that the order passed by the Consolidation Officer cannot be ignored by the Magistrate, holding proceeding u/s 145 of the Code. Of course, the law enunciated in this decision is good.
But the question is simply whether an order passed by a Consolidation authority is sufficient to constitute the fact of possession of concerned party when the proceeding was initiated and two months prior to the same. In a consolidation proceeding, title of any party is also decided. The purpose and spirit of consolidation proceeding is to carve out a compact area of an individual for improved farming. In such cases, even . lands belonging to various individuals can be exchanged and a compact and solid area of farming can be carved out for a particular'' individual. So the consolidation may refer to the right of a party but it may not necessarily refer to actual physical possession of a particular individual. During the interregnum even a trespasser can come in possession of the disputed piece of land and the Magistrate u/s 145 of the Code is simply to decide this actual physical possession and not the nature of the possession of the concerned party. So the consolidation papers cannot be given undue importance and it cannot form exclusive document of possession of a particular party. The learned Magistrate, on the basis of the overall assessment of the documents and oral evidence adduced by the parties, came to a definite conclusion that the O.P. was in possession of the disputed land and so he declared his possession.
8. At this stage, I would like to refer to the power of this Court u/s 482 of the Code in order to consider whether this Court can interfere with the decision of the Magistrate u/s 482 of the Code, just to change that order by exercising its wide power. It would be worth while to mention Section 482 of the Code verbatim in order to enlighten this Court to pass an appropriate order in this quashing application:
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
In the instant case, this Court was not called upon to give effect to any order passed under this Code which will amount to execution of any order. So far the abuse of the process of any court is concerned, I do not think the Executive Magistrate abused the procedural law in deciding the proceeding nor, perhaps, he committed any mis-application of a procedural law. The Magistrate while deciding the proceeding duly exercised his power conferred on him by law and so he did not commit any abuse of the process of. law. So far passing of the orders by this Court to secure the ends of justice is concerned, it is to be noted that the Applicant before this Court has sought quashing of the impugned order on the ground that the lower court passed an erroneous order, simply because he passed the order adverse to the interest of the Petitioner. This Court exercises its jurisdiction u/s 482 of the Code only when no remedy is available to the aggrieved party under any legal provision and when there has been a gross injustice caused to the Applicant by any order of the lower court. Normally when a proceeding is decided against any party u/s 145 of the Code, that party has remedy before the civil court for declaration of his title and for recovery of possession or for confirmation of possession. The civil court is not bound by the order passed by the Magistrate in a proceeding u/s 145 of the Code. Moreover, even if this Court sets aside the impugned order even that will not put a final seal, on the claim of possession of any of the parties to the proceeding. So the final remedy in this connection for securing the rights of the aggrieved party will lie before the civil court. In the aforesaid facts and circumstances of the case, I do not think this Court is under any legal obligation to set aside the impugned order to secure the ends of justice for Applicant before this Court.
9. In the result, there is no good case before this Court u/s 482 of the Code. Hence, this quashing application is dismissed.
