(2) put in, hear the parties, receive

0 Comment

(2) For the purpose of Section 145 of the Code, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by the Code of Criminal Procedure for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any, and which of the parties was, at the date of the order made by him under sub-section (1) of Section 145 of the Code, in possession of the subject of dispute. However, if it appears to the Magistrate that any party 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, or after that date and before the date of his order under sub-section (1) of Section 145 of the Code, he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in Section 145 of the Code shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Section 145(1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to Section 145(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 section 145(4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in Section 145(3) of the Code.

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(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under Section 145 pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under Section 145, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in Section 145 of the Code shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107 of the Code. Property dispute—Writ petition not maintainable—Remedy is to file criminal revision: Since the proceedings under Section 145 was initiated under the provisions of Cr.

P.C. and the impugned order has been passed releasing the property after dropping the proceedings under Section 145, Cr F.C., therefore, the petitioners had alternative remedy of filing criminal revision under Chapter XX of the Code of Criminal Procedure. Writ Petition under Article 227 of the Constitution of India was not maintainable.

Suit for preventive injunction to protect possession: Where earlier in proceedings under Section 145, Cr.P.C. it was found by the Magistrate that ‘SK’ was in possession over the disputed shop on the date of passing of preliminary order as also in two months prior. Magistrate directed to release shop in favour of ‘SK’. Suit was filed thereafter by ‘SD’. But ‘SD’ was not allowed to participate in proceedings under Section 145, Cr.P.

C. in spite of her best efforts. The trial Court had felt strongly against police action taken under Section 145 (1), Cr.P.C. The party proceeded against by Executive Magistrate was not interested in contesting the proceedings.

Therefore, finding by trial Court that finding given in proceedings under Section 145, Cr.P.C. will not be binding upon ‘SD’ was proper.


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