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DISPUTE AS TO IMMOVABLE PROPERTY

DISPUTE AS TO IMMOVABLE PROPERTY

AUTHOR : Jagakalia Agasti

INTRODUCTION

Dispute over immovable property such as land, water, crops and other production from land and right to use such lands often causes violence or bloodshed which leads to commit offences.

To prevent such type of offences related to dispute as to immovable property some provisions are there. It is mentioned under sec 145 to 148 in chapter 12 of Code of Criminal Procedure, 1898. Chapter 12 has four sections dealing with subject matters like- dispute concerning a land where there is a breach of peace, power to add subject of dispute, dispute related to right of use of the immovable property, and local inquiry.

PROCEDURE TO PREVENT BREACH OF PEACE

If a conflict between two parties occurs over the ownership of immovable property such as lands, water etc then that conflict is said to be a breach of peace.

The executive Magistrate can take action against breach of peace under section 145 of CrPC. The nature of the conflict, parties details, the clear description about the property and what danger it poses to the public peace must be mentioned in the Police report.

Under section 145 of CrPC, the procedure of land and river is defined which causes breach of peace.

If an executive Magistrate is satisfied by a police officer’s report or any other evidence which shows there is a possibility of breach of peace, he can write a order letter specifying the reasons for doing so and also can give notice to the involved parties to attend the court on a given specified date and time by person or by a pleader on behalf of that person.

The involved parties must have to make a written statement explaining about their claims stating why they have the actual possession on the disputed subject.

The Magistrate has to review their claims, hear both the parties on the subject matter, look into all the evidence provided by the parties and if he feels necessary he can ask for more proof.

If the parties can prove that there is no dispute on the subject matter, the Magistrate can cancel his order and there will be no further proceedings, If the Magistrate feels that one party is truthful and should have the possession of disputed subject matter, he can give judgement on favour of that party.

The party will be allowed to have possession until the competent court give orders otherwise.

The Magistrate can move the case to district judge for future proceedings, if he is not satisfied with the evidence submitted by the parties. If any party relating to the case dies, the Magistrate may allow legal representatives of the demised party to become a part of the further proceedings.

POWERS OF THE MAGISTRATE

Essential conditions to grant jurisdiction to a Magistrate u/s 145 are-

▪ There should be a conflict;

▪ The conflict should cause breach of peace

▪ The conflict should be based upon the immovable property such as land or water or houses or fisheries or crops etc.

▪ The suspected dispossession should occurred within the two months after the magistrate issued the initial order.

▪ The dispute should be in the Magistrate territory.

Power to attach subject of dispute and to appoint a receiver

Under section 146 it is specified that, even after issuing the order, if the Magistrate gets to know about the importance of the matter as to be an emergency one, or if he decides that neither of the involved parties was then in such possession, or if he does not satisfy himself as to which of the involved parties was then in possession of disputed subject matter, he may attached the disputed subject matter until the competent court has decided the party’s right as to the involved parties entitled to the possession.

The Magistrate can removed the attachment if he feels satisfied that there is no chance of breach of peace regarding the disputed subject matter.

If the Magistrate feels that there is a necessity for the care of the property, then he may assign a receiver for taking care of the property with all the powers of the receiver under the Code of Civil Procedure,1908 (5 of 1908) provided that no receiver was not being chosen by the civil court.

If any civil court has duly chosen a receiver for the disputed subject matter, then the Magistrate will direct the receiver to hand over the disputed subject matter appointed by him. And the receiver appointed by the Magistrate will be discharged of his duties.

Disputes concerning right of use of land or water

Under section 147, it is mentioned that if an executive magistrate is get notified by a police officer’s report or other evidences which is showing that there is a breach of peace based upon the dispute of any land or water within the territory of his jurisdiction, he shall make a written letter mentioning the reasons for his satisfaction.

The Magistrate shall then look into the claims of both the parties regarding the possessions, he will hear the arguments of involved parties, then he shall examines the submitted the evidence and in necessary scenario he can ask for further evidence.

If the Magistrate seems to have some rights, he may exercise his rights to prevent any interference in the proceedings and also in appropriate case, he may give order to remove any obstacle in the exercise of any such rights.

In any proceedings, if the Magistrate finds that the dispute is considers an alleged right to user of land and water, he may, after finished recording his reasons carry on with the proceedings as if they had been instituted u/s 147(1) and if the Magistrate discovers any proceedings instituted under section 147(1)  that the dispute should be dealt with under section 145, he may, after finished recording his reasons, he may carry on with the proceedings.

LOCAL INQUIRY

Under section 148, it is specified that if a local inquiry is needed for the purpose of section 145, section 146 ad section 147, then a District Magistrate or Sub-divisional Magistrate may assign any Magistrate sub ordinate to him to conduct the inquiry and may provide him with written instructions for his guidance and also may decide by whom the expenses will be paid during the time of inquiry.

In this case, the report submitted by the deputed person can be read as important evidence.

Where any costs have been incurred by any part to a proceedings under section 145, section 146, or section 147, the Magistrate giving a decision may ordered that-

▪ by whom such costs shall be paid

▪ Whether by such party or by any other party to the proceeding

▪ Whether in whole or in part or proportion

▪ such costs may include any expenses incurred in respect of witnesses and of pleaders’ fees, which the court consider reasonable.

CASE LAWS

In Amrit-Lal N. Shah v Nageswar Rao[1] case, the decision was that though after one side had falsely and in a violent way dispossessed the other and  there was no violence from that side, it could not be considered that there could no breach of peace and the procedure could also be withdrawn as per mentioned under section 145.

In Choudhury Prafulla Kumar Das and Anr. V. Lingaraj Rath and Anr[2], it was held that under section 145 the proceeding is not maintainable throughout the time of the pendency of the cases before the civil court and proceedings, in respect of the same property under incorporation.

In Baijnath Choubey and Ors. V. Dr Ram Ekbal Choubey and Ors[3], it was decided that according to facts and circumstances of the case, the combined order for the beginning of proceedings under section 145 and an order for attachment under section 146 of CrPC may be passed in spite of the absence of the term ‘emergency’ in the order of the Magistrate.

CONCLUSION

All the disputes regarding property should be resolved in a peaceful way by following the statute. People should not take the law into their own hands and should not take an illegal way or a violent way to resolve it.

A judge is not obliged to make a written preliminary order if he/she does not have any proof of breach of peace.  Here the word land or water refers to buildings, markets, crops and other land products is one of the most important thing to remember.


[1] (1946) 2 MLJ 349

[2] 1991 I OLR 340

[3] 1981 (29) BLJR 530