Aziz Malik and Others vs Mohd. Rustam Malik

Mazhar Ali Shah, J.—By this petition u/s 561-A of Cr. P.C. the petitioners have prayed for the quashing of the proceedings u/s 145 of the

Cr P.C. initiated by Executive Magistrate, 1st Class (Assistant Commissioner), Kupwara who by his preliminary order dt. 18-5-1985 taking

cognizance and has further passed an order of attachment under Clauses (i) and (iv) of Section 145 of the Cr. P.C. The dispute relates to a piece

of land comprised in Survey No. 865 measuring 17 marlas situated at Hayan, Kupwara. The Executive Magistrate, 1st Class (Assistant

Commissioner), Kupwara in the case titled as Mohd. Rustam Malik v. Aziz Malik and others, on an application moved by respondent initiated

proceedings u/s 145 of the Cr. P.C. after passing the preliminary order also passed an order for attachment of the land mentioned above under the

order aforesaid and appointed one Rasool Malik S/o Aziz Malik, Lumberdar Hayan as Supurdar for the said land.

Briefly stated the claim of the petitioners is based with respect to the land in dispute of the devolution by inheritance to petitioners 1 to 5 duly

supported by revenue entries indicating their ownership and possession. It is also alleged that on interference by respondents regarding actual

physical possession in 1984, the petitioners filed a Civil suit in the Court of Munsiff Kupwara on 18-8-1984, the respondent was arrayed as

defendant in the said Civil suit, which is pending disposal before the civil court. It is also stated that in the said suit on an application by the

petitioners for temporary injunction, the civil court directed the parties to maintain status quo on spot with regard to the suit property. This order

was also passed on 18-8-1984, which is still in force. Nothing has been brought on record by the respondent to demonstrate that the said interim

order was appealed against or in any manner set aside or modified by the civil court. It is, therefore, prayed in this petition that in view of the

pendency of the civil suit and continuance of interim order the parallel proceedings u/s 145 of the Cr. P.C. are liable to be quashed being without

jurisdiction, hence this petition.

On hearing the rival arguments, I am of the opinion that the Executive Magistrate, 1st Class (Assistant Commissioner), Kupwara during the

pendency of the civil suit, which on the very face of narration of facts enumerated above was filed much earlier the order passed in the proceedings

before the Magistrate and in which respondent had an opportunity of contesting regarding possession and to obtain an order such as injunction or

appointment of Receiver cannot be allowed to pursue the proceedings u/s 145 of the Cr. P.C. The only contest of the respondent in this regard is

based on a misconception that there was an apprehension of the breach of peace and hence he is justified in recourse to the proceedings u/s 145

of the Cr. P.C. Learned Counsel for the petitioners in support of his contention placed reliance on an authority of their Lordships of the Supreme

Court reported in Ram Sumer Puri Mahant Vs. State of U.P. and Others, , which on the facts and circumstances of the present case is applicable

with full force. Nothing could be brought by the learned Counsel for the respondent to distinguish or to take contrary view in the instant case.

The resume of the facts indicate that the petitioners filed the civil suit with respect to the same piece of land, which is in dispute in the

proceedings u/s 145 of the Cr. P.C. much before the filing of the present proceedings before the Executive Magistrate. The civil suit was filed on

18-8-1984 in which the interim order was also passed by the court on the same day restraining the respondent, who is defendant in the said suit

from disturbing the status quo regarding possession on the spot with regard to the suit property. It is also pointed out by the learned Counsel for

the petitioners of which there is no denial by the respondent that Magistrate also passed an order of attachment by appointing one Rasool Malik

S/o Aziz Malik Lumberdar Hayan as Supurdar, who in his affidavit deposed that the land in dispute was in actual physical possession of the

petitioners and it was from their possession that the same was given to him on Supurdari. He has further deposed that the petitioners were always

in possession and the respondent was never in possession of the subject-matter in dispute. However, without expressing any opinion regarding

possession it is apparent that the proceedings initiated before the Executive Magistrate subsequent to the filing of the civil suit are nothing, but a

multiplicity of litigation, such a parallel proceedings as held by their Lordships of the Supreme Court in Ram Sumer Puri Mahant Vs. State of U.P.

and Others, cannot be permitted to continue. Their Lordships have held:

There is no scope to doubt or dispute the position that the decree of the Civil court is binding on the criminal court in a matter like the one before

us....

The criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil court and parties are

in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property

during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over

meaningless litigation.

With the above said authority, which in the circumstances of the instant case is applicable with full force, I have no doubt in my mind to hold that

the Executive Magistrate shall not be allowed to proceed u/s 145 of the Cr P.C. in consequence whereof the preliminary order passed by the

Magistrate and the attachment order relating to the land in dispute by appointing Supurdar and placing the same in his possession vide order

passed on 18-5-1985 u/s 145 of the Cr. P.C. are liable to be quashed.

Viewed thus on the totality of the circumstances I allow the petition and in exercise of the powers conferred on this Court under S/561-A of the

Code of Criminal Procedure quash the proceedings initiated by respondent before the Executive Magistrate, 1st Class (Assistant Commissioner),

Kupwara. The preliminary order and the attachment order passed by the Magistrate u/s 145 of the Cr. P.C. are also quashed and set aside. The

Magistrate is directed to relieve the Supurder Rasool Malik S/o Aziz Malik Lumberdar Hayan and ask him to hand-over the possession of the land

in dispute, in case the same is with him to the persons from whom the possession was taken by the Supurder within fifteen days from the date of

the order. However, under the circumstances, parties are directed to bear their own costs. The record be sent back forth with to the Magistrate

concerned.