1. What kind of document was signed by your uncle in favour of your father?
For land issue and boundary of 4th side of my home Sir, I am Arvind from Saran, Bihar and serving in defence. I am alone son of my parents and my father expired 3 years ago.My mother alone living at house.My was two brothers and my father was younger.Big uncle written his property (Bakhasisnama) to my father in 1983.His all family was not living in Bihar.My father gave some land to step son Manoj i.e. big uncle' son without any paper who written all property to my father.His all family setteled in Mumbai. But after 6 six yeras his son ( 2 year old ) and his four daughters returned to home. My father look after their children and did marriage of children in own expense. Afterather' s death, Manoj is claiming for whole land. I was doing boundary of my home and done from three side and 4th side remains pending because he is opposing.Police is also not taking any action and telling that this is land issue.No one in my home to go to civil court.so that I want to know about section 144 applied by police and registry paper send to SDO court for decision in 60 days.please brief me after 60 day what will happen and then 145 so on procedure and also if I am going in civil court then how much time to give decision Regards
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1. What kind of document was signed by your uncle in favour of your father?
1)section 144 of the Criminal Procedure Code (CrPC) of 1973 empowers an executive magistrate to prohibit an assembly of more than four persons in an area.
2) Every member of an unlawful assembly can be held responsible for a crime committed by the group.
3)The District Magistrate may, whenever he considers it necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.
A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation.
No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made.
See under 144 crpc it is a temporary measure if there is fear of breach of public peace or any issue on the possession of property. The SDO court based on documents of ownership shall pass an order for the possession of the property and can pass such order enabling you to build the wall.
Further under Crpc 145 a dispute which is likely to cause a breach of the peace exists concerning any land or the boundaries thereof, within SDO 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.
The SDO on examining the documents and evidence can pass an order as it satisfy to ensure possession of the property.
Civil court on filing an application along with suit of possession pass an order after hearing both the sides in civil court it may take some time.
For this you should not have approached the police or the revenue court.
The permanent solution for this is with the civil court only.
You could have filed a declaration suit to declare the boundaries, if necessary after obtaining a report from an advocate commissioner appointed for this purpose and to restrain the opponents from interfering in your possession or obstructing your progress in the construction of the boundary wall.
Even now if the revenue court decision is not in your favor or being delayed inordinately, you may approach civil court for relief and remedy.
144 crpc is power to police to take immediate and urgent measures during nuisance and 145 is some issues emerging from land and water where Magistrate has power to intervene and give possession.
144. Power to issue order in urgent cases of nuisance or apprehended danger.—
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
145. Procedure where dispute concerning land or water is likely to cause breach of peace.—
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the 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.
(2) For the purposes of this section, 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 this Code 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), in possession of the subject of dispute:
Provided that 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), he maytreat 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 this section 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 sub-section (1) shall be final.
(6) (a) 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.
(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
(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 this section 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 this section, 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 this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
In section 145,—
(a) in sub-section (1), for the words “W henever an Executive Magistrate”, substitute the words “W henever in Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate”;
(b) for sub-section (10), substitute the following sub-section, namely:—
“(10) In the case of an Executive Magistrate taking action under this section nothing in this section shall be deemed to be in derogation of his power to proceed under section 107. In the case of a Metropolitan Magistrate taking action under this section, if at any stage of the proceeding, he is of the opinion that the dispute calls for an action under section 107, he shall, after recording his reasons, forward the necessary information to the Executive Magistrate having jurisdiction to enable him to proceed under that section.”