Atahaul Haque, Uday Shankar and Birendra Singh vs Md. Allauddin

I.P. Singh, J.—This application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short ''the Code''), is directed against the order dated 26.7.1997 passed in Cr. Revision No. 1/97/19/97 by Shri Binod Mohan Prasad, 2nd Additional Sessions Judge, Jehanabad through which the order passed by Shri S. Shah, Executive Magistrate acting as Sub-Divisional Magistrate, Jehanabad in Case No. 193 (M). 97''dated 25.2.1997 was set aside. On the strength of a report dated 13.2.1997 submitted by the Anchal Adhikari, Jehanabad a proceeding u/s 144 of the Code was started on 15:2.1.997 by the Sub-Divisional Officer, Jehanabad against both the parties with respect to 37 decimals of land bearing Plot nd''.346, Khata No.94 of Village Umta Police. Station and District Jehanabad. In the said report the Anchal Adhikari had stated that 8 bags of cement of petitioner no.2, Uday Shanker, was lying in the room. at the disputed land. When the Anchal Adhikari returned from the site the lock of the aforesaid room was broken and the cement was removed by opposite party no.1, Md. Alladudin. The Anchal Adhikari brought this fact to the notice of the Sub Divisional Magistrate vide his Memo No. 146 dated 15.2.1997. Both the parties appeared before the learned Sub ''Divisional Magistrate who converted this proceeding into one u/s 145 of the Code and attached the disputed land u/s 146 of the Code. Opposite party filed Criminal Revision No. 1/97/19/97 before the learned Additional ''Sessions. Judge, Jehanabad before whom it was submitted that Title Suit No.118 of 1996 for the part of the disputed land between opposite party and third persons ''wars-pending. The present petitioners appeared before the court and in their reply they stated that the petitioners were the parties to the aforesaid title s(sic) mere pendency of a title suit is not the proceeding under sections (sic) 146(1) of the Code. However, the (sic) Additional Sessions Judge allow said criminal revision by the order 26.7.1997 by which he quashed the dated 25.2.1997 passed by the ease Executive Magistrate initiating proceeding u/s 145 of the (sic) as also the order passed under (sic) 146(1) of the Code. It is against this(sic) that the present revision applicator (sic) been filed.

The petitioners have Cortes (sic) that the learned court below has (sic) emitted error of jurisdiction in not cons (sic) ing the fact that the pendency of c iv (sic) is no bar to a proceeding under se(sic) 145 of the Code which is only prevent (sic) in nature. The learned court below (sic) also committed error of law (sic) the present petitioners were not parti(sic) the said title suit which related oily (sic) part of the disputed land which was (sic) subject matter of the proceeding (sic) section 145 of the Code. The (sic) court below failed to consider that (sic) the revisional jurisdiction re-appreciation evidence is not permissible and (sic) revisional court will not replace has (sic) views over that of the original COURT (SIC) learned court below also failed (sic) sider that since the provisions of (sic) 146(1) of the Code are of emigre ture any proceeding under this (sic) cannot be stayed. On these g(sic) amonst others, it has been court(sic) that the impugned order be quas(sic)

A counter affidavit has(sic) on behalf of the opposite party (sic) contended that through a (sic) chase dated 18.1.1918. 6.97 1/2(sic) land including the disputed land (sic) chased by one Md. Sadique who subsequently sold it to one Rajia Khatoon through a registered sale deed. Rajia Khatoon sold it on 1.10.1942 to Anwarul Haque and one Mustafa through a registered sale deed. In a family partition the present disputed land measuring 37 decimals came in the share of Ajharul Haque. The father of this opposite party had purchased 12 decimals out of the total 37 decimals of land on 12.1.1952 for a sum of Rs. 97/- from the heirs of the aforesaid Ajharul Haque and thereafter he constructed a motor garage over this land and since then he is repairing the motor vehicles on it. The transferor wanted to dispossess this opposite party forcefully from this land and in the alternative threatened to transfer this land to some body else. Title Suit No.118/98 filed by this opposite party in the court of Sub-ordinate Judge, Jehanabad for declaration of his right, title and possession as also permanent injunction restraining the defendants from putting any obstruction in the peaceful possession of this opposite party over the suit land. In the said suit an application for injunction under Order 39 Rule 1 and 2 and section 151 of the CPC was filed by the plaintiff (present opposite party) and the learned Subordinate Judge by order dated 11.10.1996 passed an order of status quo over the suit land. This suit is still pending. In the said suit the sons of late Ajharul Haque and also of late Mustafa Haque were defendants. Since the order of status-quo has been passed by the civil court of competent jurisdiction, and since this suit is still pending, the present proceeding u/s 145 of the Code can not be continued till its pendency,

In the meantime by an order dated 12.12.1997 a proceeding u/s 144 of the Code was started in which this opposite party (the plaintiff of T.S.No.118/98) was made first party. In his report the Anchal Adhikari had mentioned that through a registered sale deed dated 14.10.1996 petitioner no.2 has purchased 7 1/4 decimals of land out the total 37 decimals of land from the heirs of late Mustafa and for the rest of the land there was an agreement for sale with petitioner no.3. These two persons along with their vendors had claimed that this opposite party was only their tenant and since he was not paying rent he is liable to be evicted. From this it would appear that the sale deed was only with respect to 7 1/4 decimal of land and was after the filing of the suit and the passing of the order of status-quo in Title Suit No. J 118/96. However, the learned Executive Magistrate by his order dated 15.2.1997 initiated a proceeding u/s 144 of the Code. When this opposite party received a notice of the said proceeding, he submitted that his claim was confined only to 12 decimals of land for which the civil suit was pending in the court of Sub-Judge, Jehanabad where the order of status quo has already been passed and, therefore, he prayed to drop the proceeding. The learned executive Magistrate.has, however, ignoring this petition converted the proceeding into one 145 of the Code even when a civil suit for declaration of title and possession with respect to the part of the disputed land was already pending before a civil court. Against the aforesaid illegal order passed under sections 145 and 146(1) of the Code this opposite party preferred Criminal Revision No. 1/97/19/97 which was heard and decided by the learned Additional Sessions Judge Jehanabad through his impugned order dated 26.7.1997. Before the learned re-visional court the present petitioners who are opposite party took up a peculiar point that since in both the proceedings the defendants and the second parties were not the same, the pendency of this civil suit would not bar continuance of the proceeding u/s 145 of the Code. This point was, however, dealt with in the impugned judgment by the learned court below in its paragraph no. 6 and for the grounds stated therein the learned court below quashed the order dated 25.2.1997 passed by the learned Magistrate initiating the proceeding u/s 145 of the Code as also the order attaching the disputed land u/s 145 of the Code.

It is well settled that when a civil suit for title and possession with respect to the disputed land is pending before the civil court no proceeding u/s 145 of the Code for any portion of the suit land of the said suit can proceed. Similarly no order u/s 146 of the Code could be passed while the matter was pending before the civil court for adjudication of title and possession. On these grounds it was contended that this present revision application may be dismissed as without any merit.

I have heard the parties in detail. I have also perused the impugned judgment passed by the learned Addl. Sessions Judge. The learned Additional Sessions Judge has taken into consideration the facts and circumstances of this case as also the law on the subject. In particular he has referred to an observation made in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, . On this point the law is well settled. From the facts of the said case it would appear that an order directing initiation of a proceeding u/s 145 of the Code and also adjudication of the property passed by the Magistrate, in (sic) the same property there was a (sic) possession and injunction which (sic) missed for default. The close (sic) respondent nos. 2 to 5 before the(sic) Supreme Court were the pact ion appellant before the Hon''ble(sic) Court was the defendant, it (sic) pears that an appeal was filed (sic) dismissal which was pending dis(sic) the meantime the proceeding unction 145 of the Code was started and property was attached. The rev-is or section filed against this order was (sic) by the Hon''ble Court. The (sic) Supreme Court after examining (sic) on the subject has observed that was civil litigation is pending for (sic) wherein the question of possess(sic) volved and has been adjudicate(sic) section of a parallel proceeding (sic) be allowed to continue and in the(sic) a decree of the civil court the (sic) court should not be allowed to(sic) jurisdiction particularly when the(sic) sion is being examined by the(sic) and the parties are in a posited (sic) porch the civil court for intent (sic) such as injunction or for the apportion of a receiver during the pendent (sic) dispute. It has further been obsev(sic) the Hon''ble Supreme Court that the plicity of litigation is not in the inters(sic) parties nor should public time be all(sic) be wasted over meaningless litiga(sic)

In the present case no (sic) aforesaid proceeding under seel(sic) the Code related to 37 decimal (sic) out of which 12 decimals of the(sic) the subject matter of the title suit (sic) been submitted that the parties (sic) not the same. The fact, however(sic) that part of the land which is sut(sic) ter of the proceeding under so(sic) and 146(1) of the Code is the suit land in the civil suit in which the civil court was examining the question of title and possession over the same. It does not matter even if the entire disputed land in the two proceedings are not identical. It is also not of much importance that some of the parties are different. The fact, however, remains that the part of the disputed land over which the proceedings u/s 145 and 146 of the Code are pending is also the subject matter of the dispute in the civil court where the title and possession over the same is being examined. In such a situation if the Executive Magistrate is allowed to proceed with the proceeding under sections 145 and 146(1) of the Code there is danger of two conflicting decisions one passed by the Civil Court and other by the court of the Executive Magistrate. In such a situation the law provides that the civil court should be allowed to examine the question of title and possession over even a part of the disputed land and a parallel proceeding even when the disputed land is much more then the suit land but inclusive of it can not be allowed to proceed for fear of two conflicting decisions.

This question again came up for consideration before the Hon''ble Supreme Court in the case of Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, . In this decision the ratio of decision in the case of Ram Sumer Puri Mahant (supra) has been explained and it has been observed as follows:

The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter." This decision in the case of Ram Sumer Puri Mahant (supra) was further approved by the Hon''ble Supreme Court in the case of Prakash Chand Sachdeva Vs. The State and another, .

From the detailed discussions made above it becomes.clear that the'' learned Additional Sessions Judge has properly and thoroughly.''discussed the merits of the case and the law on the subject. He has thoroughly, examined the contentions raised on behalf of the parties before him and has come to the correct conclusion. As such I am. not inclined to interfere with the same. No Illegality or irregularity could be pointed out in the impugned judgment by the learned counsel appearing on behalf of the parties. In the result this revision ''application is dismissed and the impugned order is confirmed.