Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DAILYLAW 299 (MP)

JUGAL RATHORE v. JAGDISH RATHORE

2007-03-14

S.C.VYAS

body2007
Judgment ( 1. ) THIS is a petition under Section 482 of the Code of Criminal Procedure preferred by petitioner seeking direction to Sub Divisional Magistrate, Barwaha to the effect that the objection raised by present petitioner before him be heard and decided on merits by passing an appropriate order. ( 2. ) FACTS of the case are quite interesting. Present petitioner Jugal son of Gendalal was not a party in the proceedings which were pending before the sub Divisional Magistrate in which first of all order was passed on 23-12-2000 in criminal Case No. 5/145/04 filed by Police Sanawad under the provisions of section 145 of Cr. PC in which non-applicant Nos. 1 and 2 Jagdish and Marubai wd/o Ghisalal were party No. 1 and non-applicant Nos. 3 to 6 (names are mentioned in the cause title) were party No. 2. It was stated in the complaint that the land bearing Survey No. 56; Patwari Circle No. 50; situated in Sanawad having an area of 09. 63 acres and party Nos. 1 and 2 having dispute with regard to the title and possession over the said land. ( 3. ) THE Sub Divisional Magistrate Barwaha after hearing both the parties, passed an order dated 23-12-2000 that non-applicant Nos. 1 and 2 (Party no. 1) had forcibly dispossessed to non-applicant Nos. 3 to 6 (Party No. 2) from the aforesaid disputed land on 17-4-2000, i. e. , within two months from the date of passing preliminary order and therefore direction was issued against party No. 1 and it is ordered that possession of party No. 2 be restored. This order was challenged by filing Criminal Revision No. 27 of 01 before Addl. Sessions Judge, barwaha who in turn dismissed the same vide order dated 9-1-02. Thereafter a petition under Section 482 of the Code was filed by party No. 1 before this Court bearing No. 569 of 02 and was dismissed by order dated 25-2-02. ( 4. ) IN the meantime one civil suit was filed by non-applicant No. 2 marubai against non-applicant Nos. 3 to 6 (Party No. 2) before Civil Judge Class ii Sanawad alongwith an application for temporary injunction in respect of the disputed land, which was dismissed by the Civil Judge. The said order was challenged before the Addl. District Judge, Barwaha by filing Misc. Appeal, which was dismissed on 20-11-01. 3 to 6 (Party No. 2) before Civil Judge Class ii Sanawad alongwith an application for temporary injunction in respect of the disputed land, which was dismissed by the Civil Judge. The said order was challenged before the Addl. District Judge, Barwaha by filing Misc. Appeal, which was dismissed on 20-11-01. Thereafter a writ petition was filed before this court by non-applicant No. 1 bearing No. 6858 of 02 which also dismissed on 17-9-03. ( 5. ) AFTER dismissal of the said writ petition, non-applicants (party no. 2) moved an application before SDM Barwaha for execution and implementation of its order dated 23-12-00 for delivery of possession of the disputed land. The said application was allowed vide order dated 9-5-04. The non-applicant Nos. 1 and 2 (Party No. 1) again filed a revision before Addl. Sessions Judge, which was allowed vide order dated 9-10-04. This order was challenged by non-applicant Nos. 3 to 6 (Party No. 2) before this Court by filing revision No. 838 of 04, which was decided vide order dated 13-09-06 setting aside the order of Addl. Sessions Judge, Barwaha and restored the order passed by SDM Barwaha and directed him to implement his own order dated 9-5-04. ( 6. ) NON-APPLICANT Nos. 3 to 6 (Party No. 2) again moved an application before SDM on 20-12-06 alongwith copy of order passed by this Court in revision No. 838 of 04 and prayed for delivery of possession of the disputed land. At that point of time present petition has filed by petitioner Jugal before this Court on 9-1-07 stating in the petition that present petitioner was never made a party by any one in any of the proceedings initiated before the SDM with regard to the disputed land. He was not aware of the proceedings filed under the provisions of Section 145 of the Code pending before SDM Barwaha. It has been stated that he got knowledge of the said proceedings, he immediately filed this objection on 5-1-07 before SDM Barwaha mentioning therein that the disputed land was in possession of present petitioner, and Kamlabai as well as other non-applicants joined their hand to demolish the title of present petitioner and concealed the actual facts of the case and order dated 9-10-04 has been obtained by them. The alleged objection application was dismissed by sdm Barwaha on the same day, holding that petitioner may file his claim before the Competent Court. ( 7. ) IT has been averted in the petition that it was the duty of SDM to provide him an opportunity of hearing before dismissing the objection without considering on merits and therefore such order of dismissal is liable to be quashed. ( 8. ) I have heard learned Counsel appearing for both parties and perused all the documents filed alongwith the petition as well as reply filed by non-applicant Nos. 3 to 6 (Part No. 2 ). ( 9. ) AFTER considering the matter from all angles, I am of the opinion that this petition has no merits and substance and is liable to be dismissed at the motion hearing stage itself. ( 10. ) CHAPTER X of the Code is relating to maintenance of public orders and tranquility. Section 145 to 148 of the Code are relating to the dispute as to immovable property. Sub-section (1) of Section 145 clearly provides that on the basis of a report of Police Officer and on other information whenever an executive Magistrate is satisfied that the dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Sub-section (1) of Section 145 refers the words, "parties concerned in such dispute" shows that the SDM is required to give notice only to those parties who are concerned in such dispute or in other words, "between whom the dispute likely to cause breach of peace exists concerning any land or water". This section nowhere provides notice under this sub-section is also to be given to all other persons who are not party to any dispute likely to cause breach of peace. Therefore, considering this provision, it was not necessary for SDM to issue any notice to the present petitioner when a report of Police Officer was submitted before the SDM. This section nowhere provides notice under this sub-section is also to be given to all other persons who are not party to any dispute likely to cause breach of peace. Therefore, considering this provision, it was not necessary for SDM to issue any notice to the present petitioner when a report of Police Officer was submitted before the SDM. Sub-sections (3) and (4)also refers the same parties concerned in such dispute and the SDM was not required to hear any third party who was not a party to the dispute regarding which report was filed before him. Sub-section (6) of Section 145 of the Code also provides that if the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. ( 11. ) THIS proviso again clarifies that the dispute which required to be adjudicated by SDM should only to be the dispute between the parties between whom the dispute likely to cause breach of peace exists and not between all other persons who are interested in the property. ( 12. ) MR. S. K. Vyas, learned Sr. Counsel appearing for petitioner has submitted that in the facts of present case all the non-applicants joined their hands and a false claim was projected before SDM. On the other hand, Mr. B. L. Pavecha, Sr. Advocate appearing for non-applicant Nos. 3 to 6 (Party No. 2) vehemently opposed the aforesaid arguments and submitted that as many as 3-4 rounds of litigations had already been over between both the parties. Both the parties had contested the litigations with full strength in various Courts and lastly in High Court. One civil suit with regard to the disputed land still pending. In view of the aforesaid facts, he submitted that the allegation of joining hands by both parties, is apparently false and no inference can be drawn on the basis of such allegation. Mr. One civil suit with regard to the disputed land still pending. In view of the aforesaid facts, he submitted that the allegation of joining hands by both parties, is apparently false and no inference can be drawn on the basis of such allegation. Mr. Pavecha has drawn attention to the order dated 23-12-2000 passed by SDM which shows that the matter was fully contested by both the parties. He also drawn attention to the order dated 25-2-02 (Annexure P-3) passed in M. Cr. C. No. 27 of 01 by this Court which also shows that there was nothing like joining hands between the parties. Ultimately party No. 1 (N. A. Nos. 1 and 2) lost their battle in every Court including in W. P. No. 6858 of 03, decided on 17-9-03. ( 13. ) AFTER perusal of all these orders, I am convinced that there was nothing like joining hands between the parties. ( 14. ) A very important fact has been brought to the notice of this Court by Mr. Pavecha that non-applicant No. 1 Jagdish son of Gendalal Rathore and present petitioner Jugal son of Gendalal Rathore are real brothers. N. A. No 1 jagdish son of Gendalal Rathore was the Attorney Holder of N. A. No. 2 marubai wd/o Ghisalal Rathore and he is the person who executed the sale deed in favour of non-applicant Nos. 3 to 6 (party No. 2 ). He submitted that the same person has now started another round of litigation through his brother Jugal who was aware and has full knowledge of earlier litigation going on between both the parties. This argument prima facie appears to be true looking to the copies of the orders filed alongwith the petition. ( 15. ) IN any case, there appears no scope of third party intervention or providing opportunity of hearing to him in a proceeding which has already been decided and learned SDM has rightly held that remedy is not available to the third party by way of filing objection, but would be available by filing the same before appropriate forum. ( 16. ) IT appears that present petition has been filed solely with an intention to create hurdle and obstruction in delivery of possession of the disputed land to party No. 2 in whose favour orders have been passed by competent Court and has been confirmed by the Superior Court. ( 16. ) IT appears that present petition has been filed solely with an intention to create hurdle and obstruction in delivery of possession of the disputed land to party No. 2 in whose favour orders have been passed by competent Court and has been confirmed by the Superior Court. The effort on the part of the present petitioner is nothing, but, sheer abuse of process of course and such course should be curbed with hard hands. ( 17. ) IN view of the aforesaid discussions, I do not find any merits and substance in the present petition which is dismissed in limine with a cost of rs. 2,500/- which would be payable by present petitioner to the non-applicants (Part No. 2 ). M. Cr. C. dismissed.