1. With the consent of learned advocates appearing on behalf of the respective parties, the present Criminal Revision Application is heard finally. In fact, it was heard yesterday and it was part-heard and, therefore, it was adjourned to today and heard finally today.
2. The present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure has been preferred by the petitioners herein - original respondent Nos.1 to 7 in Criminal Revision Application No.21 of 2000 before learned Revisional Court, to quash and set aside the impugned judgement and order dated 16/08/2001 passed by learned Sessions Judge, Surat in Criminal Revision Application No.21 of 2000, by which, learned Revisional Court has allowed the said Criminal Revision Application preferred by respondent No.1 herein - original revisionist- original Group-3 by quashing and setting the order dated 27/01/2000 passed by learned Executive Court, Surat u/s.145 of the Code of Criminal Procedure in Court Case No.19 of 1999, by which, learned Executive Court, Surat held that petitioner Nos.2, 4 to 7 herein were in possession of disputed land admeasuring 1406.66 sq.mtrs. out of land bearing Revenue Survey No.291/2 paiki, land bearing Final Plot No.97/B situated at Amroli, Surat.
3. That the Police Sub-Inspector, Katargam Police Station submitted the Report to the learned Executive Magistrate, Surat that a dispute is likely to cause a breach of peace with respect to suit land. It was submitted that three different Groups claimed to be in possession of the suit land. At the outset, it is required to be noted that so far as petitioners are concerned, they are part of Group-1; so far as respondent No.1 is concerned, he is part of Group-3 and so far as other respondents herein are concerned, they are forming part of Group-2. On appreciation of evidence and on inquiry and investigation, learned Executive Magistrate found that petitioners herein - Group-1 are in possession of the suit land and, therefore, learned Additional Executive Magistrate, Surat passed an order u/s.145 of the Code of Criminal Procedure by holding that the petitioner Nos.2, 4 to 7 were in possession of the suit land and ordered that till they are dispossessed after following due procedure their possession shall not be disturbed. Learned Magistrate also passed an order directing the parties not to act in a manner which is likely to commit breach of peace.
4. Feeling aggrieved by and dissatisfied with the order dated 27/01/2000 passed by learned Additional Executive Magistrate, Surat in Criminal Procedure Code/Section/145/ Court Case No.19 of 1999, respondent No.1 herein - Group-3 preferred Criminal Revision Application No.21 of 2000 before learned Sessions Court, Surat and learned Sessions Judge, Surat by impugned judgement and order dated 16/08/2001 has allowed the said Criminal Revision Application and has quashed and set aside the order passed by learned Executive Magistrate, Surat solely and mainly relying upon mutation entry in the revenue record, in which, name of the respondent No.1 herein - revisionist- Group-3 has been shown as Occupier and giving much stress on legal possession rather than actual possession. Being aggrieved by and dissatisfied with the impugned judgement and order passed by learned Revisional Court, the petitioners herein - Group-1 have preferred the present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure.
5. From the impugned judgement and order passed by learned Revisional Court, it appears that learned Revisional Court has given much stress/ importance on aspect of legal possession rather than actual possession and solely on the basis of mutation entry in the revenue record, in which, name of respondent No.1 herein is shown as Occupier, learned Revisional Court has held that petitioner Nos.2, 4 to 7 are not in possession of suit land and held that respondent No.1 herein is in possession of the suit land. Considering Section 145 of the Code of Criminal Procedure, as such what is required to be considered is who is in actual possession of the property rather than legal possession. As per catena of decisions of Hon'ble Supreme Court as well as this Court, while considering scope and ambit of Section 145 of the Code of Criminal Procedure, it is held that the concerned Magistrate is not required to consider the question of title and legality and validity of possession of the concerned person, What is required to be considered is actual possession and whether there is likelihood of breach of peace or not? Under the circumstances, the impugned judgement and order passed by learned Revisional Court cannot be sustained.
However, considering the impugned judgement and order passed by learned Revisional Court, it appears that only in two lines and in one paragraph i.e para No.57, learned Revisional Court has given finding that the petitioners herein have illegally taken over the possession. However, nothing has been discussed by learned Revisional Court how and on what basis the learned Revisional Court has come to the conclusion that how the petitioners herein have illegally taken over the possession from respondent No.1 herein – Group-3. Nothing has been discussed by learned Revisional Court while giving the aforesaid finding. No other evidence has been discussed by learned Revisional Court while giving the aforesaid finding.
Under the circumstances, there is broad consensus between learned advocates appearing on behalf of the respective parties to remand the matter to the learned Revisional Court only to consider from the evidence on record that Who was in actual possession of the suit land on the date on which the report was submitted and two months prior to report. Considering Section 145 of the Code of Criminal Procedure, learned Revisional Court to consider the same in accordance with law and on merits and on the basis of evidence on record, after giving an opportunity to all concerned more particularly petitioners herein and respondent No.1 herein.
6. Learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgement and order and while remanding the matter to the Revisional Court. Hence, this Court is not assigning any further reasoned order while quashing and setting aside the impugned judgement and order passed by learned Revisional Court. However, suffice it to say that reasoning given by learned Revisional Court on considering legal possession rather than actual possession, cannot be sustained, as stated hereinabove.
7. In view of the above and for the reasons stated hereinabove, the present Criminal Revision Application No.356 of 2001 succeeds in part. The impugned judgement and order 16/08/2001 passed by learned Sessions Judge, Surat in Criminal Revision Application No.21 of 2000 is hereby quashed and set aside and the matter is remanded to the learned Revisional Court to decide and dispose of the same in accordance with law and on merits and in light of the observations made hereinabove and to the aforesaid aspect only after giving an opportunity to the respective parties more particularly the petitioners and respondent No.1 herein. Till then, all the parties are directed to maintain status quo as on the date on which the present Criminal Revision Application was preferred. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order without fail and compliance of the same to be reported to this Court.
8. In view of the above and without prejudice to the rights and contentions of respondent No.1 herein, Mr.Rushabh Shah, learned advocate appearing on behalf of the applicant of Criminal Misc. Application No.12659 of 2012 does not press the Criminal Misc. Application No.12659 of 2012.
Under the circumstances, without prejudice to the rights and contentions of the respective parties in the Criminal Revision Application before learned Revisional Court, the present Criminal Misc. Application No.12659 of 2012 is dismissed as not pressed. Notice is discharged.
So far as Criminal Revision Application No.356 of 2001 is concerned, Rule is made absolute to the aforesaid extent.
9. Registry is directed to send writ of this order to the learned Revisional Court immediately. Registry is also directed to return the record and proceedings of the case to the learned Revisional Court along with the writ of this order.
[M.R.SHAH,J] *dipti