Radheshyam Vs. Jwakim and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/952184
CourtChhattisgarh High Court
Decided OnApr-06-2011
Case NumberCriminal Misc Petition No 36 of 2011
Judge T.P. SHARMA
AppellantRadheshyam
RespondentJwakim and Another
Excerpt:
(petition under section 482 of criminal procedure code)1. by this petition under section 482 of the code of criminal procedure, 1973 (for short ‘the code, 1973'), the petitioner has challenged legality and propriety of the order dated 20-1-2011 passed by the sessions judge, sessions division, jashpur in criminal revision no.13/2004, affirming the order dated 26-8-2004 passed by the sub divisional magistrate, bagicha in criminal mjc no.7/2004, whereby learned sub divisional magistrate has declared the possession of respondent no.1 under section 145 of the code, 1973.2. brief facts necessary for disposal of this petition are that the petitioner has purchased 0.06 acre of land of khasra no.106/1 situate at village bagicha from one mahadev sai - member of st by agreement dated 26-8-89, out of the area 0.42 acres, thereafter on 19-10-2001 mahadev sai sold 0.06 acres of land of khasra no.106/1 to respondent no.1. on the basis of aforesaid sale deed, respondent no.1 tried to dispossess the petitioner and tried to cause breach of peace. on the aforesaid ground, petition under section 145 of the code, 1973 was filed before the court of sub divisional magistrate, bagicha, on behalf of the petitioner.3. by filing reply, respondent no.1 has denied the adverse allegation and specifically alleged that the petitioner is not member of scheduled tribe and was not competent to purchase the property from tribal i.e. mahadev sai and that the alleged agreement is illegal. respondent no.1 has further alleged that previously in the year 1981-82 revenue proceeding under section 170b of the madhya pradesh/ chhattisgarh land revenue code, 1959 (for short ‘the code, 1959') has been initiated against the petitioner at the instance of mahadev sai and finally possession was handed over to mahadev sai. revenue appeal was also dismissed vide order dated 9-7-1984. the petitioner along with other unsocial elements broken the lock of respondent no.1 and has entered into possession over the disputed property including the house on 21-11-2001. respondent no.1 lodged report to the police. the petitioner has forcefully obtained possession over the suit property on 21-11-2001.4. in terms of section 145 (4) of the code, 1973, the sub divisional magistrate has declared the possession of respondent no.1, same was challenged before the revisional court and the revisional court has affirmed the order passed by the sub divisional magistrate vide the order impugned.5. i have heard learned counsel for the parties, perused the orders and records of the courts below.6. mr. awadh tripathi, learned counsel for the petitioner, vehemently argued that this is petition under section 482 of the code, 1973 after dismissal of criminal revision, but in suitable cases namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice, the high court is empowered to interfere in exercise of extra ordinary inherent jurisdiction. in the present case, both the courts below were under obligation to consider the question of actual possession on the date of filing of complaint or within two months prior to date of filing of complaint under section 145 of the code, 1973 in accordance with section 145 (6) of the code, 1973, but instead of considering the question of actual possession of the party both the courts below have considered the question of right to possess the property and thereby both the courts below have committed illegality. even the sub divisional magistrate has not considered the factum of possession of the disputed property and has deviated from his duty and has considered the question of factum of possession of another land relating to one rajnath sao which was not the subject matter of present dispute. learned counsel further argued that evidence of mahadev sai - the alleged original owner of the property, is sufficient for drawing definite conclusion that the petitioner was in possession on the date of filing of the petition and within two months prior to the date of filing of the petition, therefore, both the courts below were under obligation to declare the possession of the petitioner and by not declaring the possession of the petitioner both the courts below have committed illegality.7. on the other hand, mr. rajeev shrivastava, learned counsel for respondent no.1, vehemently opposed the petition and submitted that this is petition under section 482 of the code, 1973 after dismissal of revision. concurrent finding of facts of both the courts below are not required to be disturbed without any cogent reason. the petitioner was not in possession on the date of filing of petition or within two months prior to filing of petition, even he was not entitled for possession. the state and the sub divisional magistrate were not competent to declare or handover the possession to the petitioner. even otherwise, possession of the petitioner on the basis of illegal agreement over the property owned by member of scheduled tribe was illegal and the state was under obligation to restore the possession in terms of section 170b of the code, 1959 and also in terms of rule 12 (4) of the scheduled castes and the scheduled tribes (prevention of atrocities) rules, 1995. wrongful dispossession of a member of a scheduled tribe by a member of a non-scheduled tribe is offence punishable under section 3 (1) (v) of the scheduled cates and the scheduled tribes (prevention of atrocities) act, 1989. learned counsel further submitted that the aforesaid act is having overriding effect upon other acts including the provisions contained in section 145 of the code, 1973 and, therefore, the court was not empowered to grant any relief under section 145 of the code, 1973. learned counsel also submitted that as per evidence of original seller mahadev sai, he has sold the disputed land to respondent no.1 in the year 2001. evidence of mahadev sai is sufficient to establish the fact that only respondent no.1 was in possession over the property and not the petitioner. learned counsel placed reliance in the matter of amrendra pratap singh v. tej bahadur prajapati and others, (2004) 10 scc 65, in which the supreme court has held that the expression "transfer of immovable property' as defined in clause (f) of para 2 of the orissa scheduled areas transfer of immovable property (by scheduled tribes) regulations, 1956 has to be assigned a very wide and extended meaning depending on the context and the setting in which it has been used so as to include therein such transactions as would not otherwise and ordinarily be included in its meaning. the supreme court has further held that adverse possession or any document extinguishing the title also includes the expression "transfer of immovable property".8. learned counsel for respondent no.1 contended that the provisions of the scheduled cates and the scheduled tribes (prevention of atrocities) act, 1989 and the provisions of section 170b of the code, 1959 are beneficial provisions, legislated to save the property of tribal from non-tribal, the state is under obligation to save their property even without any claim or application of the aggrieved person.9. learned state counsel also opposed the petition.10. as per the allegations made in the petition and reply filed before the sub divisional magistrate, documentary and oral evidence of the parties, initially before 1982 there was some dispute between the petitioner and original seller mahadev sai relating to possession of khasra no.106 area 1.05 acre and khasra no.105/240 area 1.05 acre, total area 2.10 acres, which was in possession of the petitioner. revenue proceeding under section 170b of the code, 1959 was initiated vide revenue case no.73/ a-23/81-82 and vide order dated 30-9-83 order for restoration of property was passed by the competent authority, same was challenged before the additional collector, jashpur in revenue appeal no.23/a-23/83-84 and vide order dated 9-7-84 the appeal was dismissed. finally possession was handed over to mahadev sai on or before 9-7-84.11. as per evidence of petitioner radheshyam, again he entered into an agreement with mahadev sai on 26-8-89 vide ex.p-2 relating to 0.06 acre of land bearing khasra no.106/1 and again obtained possession of aforesaid land vide ex.p-2.12. mahadev sai has been examined by respondent no.1 as witness no.1. he has admitted the truthfulness of agreement ex.p-2 and his signature over the aforesaid document. in his cross-examination, he has specifically admitted that after execution of agreement ex.p-2 dated 26-8-89, the petitioner has constructed house and cycle shop over the said land admeasuring area 6 decimals and thereafter, he made further more construction. he has specifically deposed in his evidence that he has sold the disputed property including the house to respondent no.1 in the year 2001 and has handed over the possession to respondent. in his cross-examination he has also admitted length and breadth of the house which was sold to respondent no.1 in the year 2001, same was 40 ft. x 20 ft. evidence of this witness clearly reveals that in the year 1989 he has entered into agreement with the petitioner relating to 6 decimals of land and after the agreement, the petitioner has constructed house and shop over the land, and in the year 2001 he has sold the land including house admeasuring area 40 ft. x 20 ft. to respondent no.1. execution of sale deed dated 19-10-2001 by mahadev sai in favour of respondent no.1 has not been substantially disputed by any of the parties. both the parties have also admitted execution of aforesaid sale deed in favour of respondent no.1 by mahadev sai.13. the petitioner has filed petition under section 145 of the code, 1973 on 26-11-2001 i.e. within one month seven days of execution of the alleged sale deed. as per reply of respondent no.1, he has obtained possession over the property on 19-10-2001 and he has been dispossessed by the petitioner on 21-11-2001. the petitioner has deposed in his evidence that he was in peaceful possession over the property since 1989. inter alia, respondent no.1 has deposed in his evidence that he entered into possession on the date of purchase of the property, but in his cross-examination he has admitted that he does not knew the number of rooms of his house. virtually, his evidence reveals that he has not obtained possession of the part of property which was in possession of the petitioner.14. possession of the petitioner has not been denied by original seller mahadev sai, inter alia, mahadev sai has specifically admitted that after purchasing the land vide ex.p-2, the petitioner has constructed house and cycle shop on the aforesaid property. however, in first para of his examination, he has admitted that he has sold the disputed property to jwakim i.e. respondent no.1 and handed over possession to respondent no.1. but in cross-examination he has specifically deposed that the petitioner is in possession of the property purchased by him since its purchase. his evidence shows that respondent no.1 has not obtained possession of the property which was in possession of the petitioner. even otherwise, if it is assumed that by any means respondent no.1 has obtained possession of the property on the date of its purchase i.e. 19-10-2001, then it was a case of dispossession of the petitioner within two months from filing of application under section 145 of the code, 1973 by the petitioner i.e. from the date of information received by the magistrate by filing petition under section 145 of the code, 1973.15. as held by the supreme court in the matter of amrendra (supra), definition of transfer of immovable property shall be construed as transfer by other documents or any other instrument effecting the dispossession of tribal.16. the petitioner is not member of scheduled tribe, but mahadev sai is member of scheduled tribe. therefore, any document of transfer without obtaining permission from competent authority may be the subject matter of section 170b of the code, 1959 being transfer of immovable property by a member of scheduled tribe to a person not a member of scheduled tribe. but the fact remains that on the date of filing the petition, as per the allegations and evidence of respondent no.1, the petitioner was in possession of the property. on the date of alleged transfer between mahadev sai and respondent no.1 i.e. on 19-10-2001, the petitioner was in possession over the property and the petitioner has filed petition even within two months of the alleged transaction of sale. the provisions relating to rule 12 (4) of the scheduled castes and the scheduled tribes (prevention of atrocities) rules, 1995 may be applicable at the instance of member of scheduled tribe i.e. mahadev sai and suitable action may be taken under the provisions of the aforesaid rules. however, while deciding the dispute under section 145 of the code, 1973 the executive magistrate has limited scope and is under obligation to decide the two questions substantially that (1) whether there was any dispute relating to immovable property and (2) whether there is likely to cause breach of peace relating to such possession of the property.17. as per proviso to sub-section (4) of section 145 of the code, 1973, the magistrate is empowered to restore the possession of a person who has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the magistrate. it limits the power of the magistrate and the magistrate is only empowered to consider possession including forcible and wrongful dispossession within two months next before the date of such information. in other words, if some person is dispossessed even wrongfully or forcibly more than two months next before the date of such information, the executive magistrate is not empowered to pass any order in accordance with section 145 of the code. 1973.18. proceeding under section 145 of the code, 1973 is summary proceeding based on existence of breach of peace relating to possession of immovable property. in absence of any question of breach of peace, the magistrate is not empowered to pass any order under section 145 of the code, 1973. the aforesaid ground taken by respondent no.1 relating to entitlement of possession of mahadev sai that it is the duty of the state to restore possession from the petitioner in favour of mahadev sai in accordance with section 170b of the code, 1959 or the provisions of the rules, 1995 and the act, 1989 is totally irrelevant for consideration of the present petition.19. the scope of section 145 of the code, 1973 is limited and the executive magistrate is required to consider the factum of actual possession of limited period, even he is required to protect the possession, not in accordance with law. in the present case, the sub divisional magistrate has not considered the question of possession on the basis of material produced before it, but has considered right to possess the property that too relating to mahadev sai on the basis of decisions of the revenue courts prior to 1989.20. in order to decide the dispute, the sub divisional magistrate was under obligation to consider ocular and documentary evidence on the basis of allegations made by both the parties, but the sub divisional magistrate has not considered the aforesaid allegations and evidence of the parties, and thereby, committed grave illegality. while dismissing the revision, the revisional court has substantially considered the right to possess the property but has not considered the actual possession and thereby learned sessions judge has also committed grave illegality.21. for the foregoing reasons, the illegal orders passed by both the courts below are not sustainable and require interference in exercise of extra ordinary inherent jurisdiction to secure the ends of justice.22. consequently, the petition deserves to be allowed and it is hereby allowed. orders passed by both the courts below are hereby quashed. the petitioner is declared the person entitled to possess the property i.e. khasra no.106/1 area 0.06 acre situate at village bagicha until evicted therefrom in due course of law. the respondents are restrained from making all disturbance of such possession until such eviction.
Judgment:

(Petition under Section 482 of Criminal Procedure Code)

1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code, 1973'), the petitioner has challenged legality and propriety of the order dated 20-1-2011 passed by the Sessions Judge, Sessions Division, Jashpur in Criminal Revision No.13/2004, affirming the order dated 26-8-2004 passed by the Sub Divisional Magistrate, Bagicha in Criminal MJC No.7/2004, whereby learned Sub Divisional Magistrate has declared the possession of respondent No.1 under Section 145 of the Code, 1973.

2. Brief facts necessary for disposal of this petition are that the petitioner has purchased 0.06 acre of land of Khasra No.106/1 situate at Village Bagicha from one Mahadev Sai - member of ST by agreement dated 26-8-89, out of the area 0.42 acres, thereafter on 19-10-2001 Mahadev Sai sold 0.06 acres of land of Khasra No.106/1 to respondent No.1. On the basis of aforesaid sale deed, respondent No.1 tried to dispossess the petitioner and tried to cause breach of peace. On the aforesaid ground, petition under Section 145 of the Code, 1973 was filed before the Court of Sub Divisional Magistrate, Bagicha, on behalf of the petitioner.

3. By filing reply, respondent No.1 has denied the adverse allegation and specifically alleged that the petitioner is not member of Scheduled Tribe and was not competent to purchase the property from tribal i.e. Mahadev Sai and that the alleged agreement is illegal. Respondent No.1 has further alleged that previously in the year 1981-82 revenue proceeding under Section 170B of the Madhya Pradesh/ Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code, 1959') has been initiated against the petitioner at the instance of Mahadev Sai and finally possession was handed over to Mahadev Sai. Revenue appeal was also dismissed vide order dated 9-7-1984. The petitioner along with other unsocial elements broken the lock of respondent No.1 and has entered into possession over the disputed property including the house on 21-11-2001. Respondent No.1 lodged report to the police. The petitioner has forcefully obtained possession over the suit property on 21-11-2001.

4. In terms of Section 145 (4) of the Code, 1973, the Sub Divisional Magistrate has declared the possession of respondent No.1, same was challenged before the revisional court and the revisional court has affirmed the order passed by the Sub Divisional Magistrate vide the order impugned.

5. I have heard learned counsel for the parties, perused the orders and records of the Courts below.

6. Mr. Awadh Tripathi, learned counsel for the petitioner, vehemently argued that this is petition under Section 482 of the Code, 1973 after dismissal of criminal revision, but in suitable cases namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice, the High Court is empowered to interfere in exercise of extra ordinary inherent jurisdiction. In the present case, both the Courts below were under obligation to consider the question of actual possession on the date of filing of complaint or within two months prior to date of filing of complaint under Section 145 of the Code, 1973 in accordance with Section 145 (6) of the Code, 1973, but instead of considering the question of actual possession of the party both the Courts below have considered the question of right to possess the property and thereby both the Courts below have committed illegality. Even the Sub Divisional Magistrate has not considered the factum of possession of the disputed property and has deviated from his duty and has considered the question of factum of possession of another land relating to one Rajnath Sao which was not the subject matter of present dispute. Learned counsel further argued that evidence of Mahadev Sai - the alleged original owner of the property, is sufficient for drawing definite conclusion that the petitioner was in possession on the date of filing of the petition and within two months prior to the date of filing of the petition, therefore, both the Courts below were under obligation to declare the possession of the petitioner and by not declaring the possession of the petitioner both the Courts below have committed illegality.

7. On the other hand, Mr. Rajeev Shrivastava, learned counsel for respondent No.1, vehemently opposed the petition and submitted that this is petition under Section 482 of the Code, 1973 after dismissal of revision. Concurrent finding of facts of both the Courts below are not required to be disturbed without any cogent reason. The petitioner was not in possession on the date of filing of petition or within two months prior to filing of petition, even he was not entitled for possession. The State and the Sub Divisional Magistrate were not competent to declare or handover the possession to the petitioner. Even otherwise, possession of the petitioner on the basis of illegal agreement over the property owned by member of Scheduled Tribe was illegal and the State was under obligation to restore the possession in terms of Section 170B of the Code, 1959 and also in terms of Rule 12 (4) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Wrongful dispossession of a member of a Scheduled Tribe by a member of a non-Scheduled Tribe is offence punishable under Section 3 (1) (v) of the Scheduled Cates and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Learned counsel further submitted that the aforesaid Act is having overriding effect upon other Acts including the provisions contained in Section 145 of the Code, 1973 and, therefore, the Court was not empowered to grant any relief under Section 145 of the Code, 1973. Learned counsel also submitted that as per evidence of original seller Mahadev Sai, he has sold the disputed land to respondent No.1 in the year 2001. Evidence of Mahadev Sai is sufficient to establish the fact that only respondent No.1 was in possession over the property and not the petitioner. Learned counsel placed reliance in the matter of Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, (2004) 10 SCC 65, in which the Supreme Court has held that the expression "transfer of immovable property' as defined in clause (f) of para 2 of the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 has to be assigned a very wide and extended meaning depending on the context and the setting in which it has been used so as to include therein such transactions as would not otherwise and ordinarily be included in its meaning. The Supreme Court has further held that adverse possession or any document extinguishing the title also includes the expression "transfer of immovable property".

8. Learned counsel for respondent No.1 contended that the provisions of the Scheduled Cates and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the provisions of Section 170B of the Code, 1959 are beneficial provisions, legislated to save the property of tribal from non-tribal, the State is under obligation to save their property even without any claim or application of the aggrieved person.

9. Learned State counsel also opposed the petition.

10. As per the allegations made in the petition and reply filed before the Sub Divisional Magistrate, documentary and oral evidence of the parties, initially before 1982 there was some dispute between the petitioner and original seller Mahadev Sai relating to possession of Khasra No.106 area 1.05 acre and Khasra No.105/240 area 1.05 acre, total area 2.10 acres, which was in possession of the petitioner. Revenue proceeding under Section 170B of the Code, 1959 was initiated vide Revenue Case No.73/ A-23/81-82 and vide order dated 30-9-83 order for restoration of property was passed by the competent authority, same was challenged before the Additional Collector, Jashpur in Revenue Appeal No.23/A-23/83-84 and vide order dated 9-7-84 the appeal was dismissed. Finally possession was handed over to Mahadev Sai on or before 9-7-84.

11. As per evidence of petitioner Radheshyam, again he entered into an agreement with Mahadev Sai on 26-8-89 vide Ex.P-2 relating to 0.06 acre of land bearing Khasra No.106/1 and again obtained possession of aforesaid land vide Ex.P-2.

12. Mahadev Sai has been examined by respondent No.1 as witness No.1. He has admitted the truthfulness of agreement Ex.P-2 and his signature over the aforesaid document. In his cross-examination, he has specifically admitted that after execution of agreement Ex.P-2 dated 26-8-89, the petitioner has constructed house and cycle shop over the said land admeasuring area 6 decimals and thereafter, he made further more construction. He has specifically deposed in his evidence that he has sold the disputed property including the house to respondent No.1 in the year 2001 and has handed over the possession to respondent. In his cross-examination he has also admitted length and breadth of the house which was sold to respondent No.1 in the year 2001, same was 40 ft. x 20 ft. Evidence of this witness clearly reveals that in the year 1989 he has entered into agreement with the petitioner relating to 6 decimals of land and after the agreement, the petitioner has constructed house and shop over the land, and in the year 2001 he has sold the land including house admeasuring area 40 ft. x 20 ft. to respondent No.1. Execution of sale deed dated 19-10-2001 by Mahadev Sai in favour of respondent No.1 has not been substantially disputed by any of the parties. Both the parties have also admitted execution of aforesaid sale deed in favour of respondent No.1 by Mahadev Sai.

13. The petitioner has filed petition under Section 145 of the Code, 1973 on 26-11-2001 i.e. within one month seven days of execution of the alleged sale deed. As per reply of respondent No.1, he has obtained possession over the property on 19-10-2001 and he has been dispossessed by the petitioner on 21-11-2001. The petitioner has deposed in his evidence that he was in peaceful possession over the property since 1989. Inter alia, respondent No.1 has deposed in his evidence that he entered into possession on the date of purchase of the property, but in his cross-examination he has admitted that he does not knew the number of rooms of his house. Virtually, his evidence reveals that he has not obtained possession of the part of property which was in possession of the petitioner.

14. Possession of the petitioner has not been denied by original seller Mahadev Sai, inter alia, Mahadev Sai has specifically admitted that after purchasing the land vide Ex.P-2, the petitioner has constructed house and cycle shop on the aforesaid property. However, in first para of his examination, he has admitted that he has sold the disputed property to Jwakim i.e. respondent No.1 and handed over possession to respondent No.1. But in cross-examination he has specifically deposed that the petitioner is in possession of the property purchased by him since its purchase. His evidence shows that respondent No.1 has not obtained possession of the property which was in possession of the petitioner. Even otherwise, if it is assumed that by any means respondent No.1 has obtained possession of the property on the date of its purchase i.e. 19-10-2001, then it was a case of dispossession of the petitioner within two months from filing of application under Section 145 of the Code, 1973 by the petitioner i.e. from the date of information received by the Magistrate by filing petition under Section 145 of the Code, 1973.

15. As held by the Supreme Court in the matter of Amrendra (supra), definition of transfer of immovable property shall be construed as transfer by other documents or any other instrument effecting the dispossession of tribal.

16. The petitioner is not member of Scheduled Tribe, but Mahadev Sai is member of Scheduled Tribe. Therefore, any document of transfer without obtaining permission from competent authority may be the subject matter of Section 170B of the Code, 1959 being transfer of immovable property by a member of Scheduled Tribe to a person not a member of Scheduled Tribe. But the fact remains that on the date of filing the petition, as per the allegations and evidence of respondent No.1, the petitioner was in possession of the property. On the date of alleged transfer between Mahadev Sai and respondent No.1 i.e. on 19-10-2001, the petitioner was in possession over the property and the petitioner has filed petition even within two months of the alleged transaction of sale. The provisions relating to Rule 12 (4) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 may be applicable at the instance of member of Scheduled Tribe i.e. Mahadev Sai and suitable action may be taken under the provisions of the aforesaid Rules. However, while deciding the dispute under Section 145 of the Code, 1973 the Executive Magistrate has limited scope and is under obligation to decide the two questions substantially that (1) whether there was any dispute relating to immovable property and (2) whether there is likely to cause breach of peace relating to such possession of the property.

17. As per proviso to sub-section (4) of Section 145 of the Code, 1973, the Magistrate is empowered to restore the possession of a person who has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate. It limits the power of the Magistrate and the Magistrate is only empowered to consider possession including forcible and wrongful dispossession within two months next before the date of such information. In other words, if some person is dispossessed even wrongfully or forcibly more than two months next before the date of such information, the Executive Magistrate is not empowered to pass any order in accordance with Section 145 of the Code. 1973.

18. Proceeding under Section 145 of the Code, 1973 is summary proceeding based on existence of breach of peace relating to possession of immovable property. In absence of any question of breach of peace, the Magistrate is not empowered to pass any order under Section 145 of the Code, 1973. The aforesaid ground taken by respondent No.1 relating to entitlement of possession of Mahadev Sai that it is the duty of the State to restore possession from the petitioner in favour of Mahadev Sai in accordance with Section 170B of the Code, 1959 or the provisions of the Rules, 1995 and the Act, 1989 is totally irrelevant for consideration of the present petition.

19. The scope of Section 145 of the Code, 1973 is limited and the Executive Magistrate is required to consider the factum of actual possession of limited period, even he is required to protect the possession, not in accordance with law. In the present case, the Sub Divisional Magistrate has not considered the question of possession on the basis of material produced before it, but has considered right to possess the property that too relating to Mahadev Sai on the basis of decisions of the revenue courts prior to 1989.

20. In order to decide the dispute, the Sub Divisional Magistrate was under obligation to consider ocular and documentary evidence on the basis of allegations made by both the parties, but the Sub Divisional Magistrate has not considered the aforesaid allegations and evidence of the parties, and thereby, committed grave illegality. While dismissing the revision, the revisional Court has substantially considered the right to possess the property but has not considered the actual possession and thereby learned Sessions Judge has also committed grave illegality.

21. For the foregoing reasons, the illegal orders passed by both the Courts below are not sustainable and require interference in exercise of extra ordinary inherent jurisdiction to secure the ends of justice.

22. Consequently, the petition deserves to be allowed and it is hereby allowed. Orders passed by both the Courts below are hereby quashed. The petitioner is declared the person entitled to possess the property i.e. Khasra No.106/1 area 0.06 acre situate at Village Bagicha until evicted therefrom in due course of law. The respondents are restrained from making all disturbance of such possession until such eviction.