Chhaju Ram vs Sub Divisional Magistrate, Mohindergarh

V.S. Aggarwal, J.

Chhajju Ram and others (hereinafter described as ''the petitioners'') seek quashing of the order dated 20.11.1995 passed by the learned Sub Divisional Magistrate, Mohindergarh. By virtue of the impugned order, the land in question which was owned and possessed by the parties was attached and Tehsildar, Mohindergarh was appointed as the Receiver.

The relevant facts are that agricultural land measuring 118 Kanals 3 Marlas situated in village Bairawas is jointly owned and possessed by the parties. To this effect entries have been made in the Jamabandi for the year 199091. The petitioners claim that they are coowners to the extent of th share. Smt. Moharli respondent No. 2 is cosharer to the extent of share and respondents 4 to 6 are cosharers to the extent of share. All of them are recorded to be in joint possession. Respondents 2 and 3 filed an application before the police for initiation of proceedings under Section 145 Cr.P.C. It was stated that respondent No. 2 by virtue of the civil court''s decree has transferred her share to respondent No. 3. But the other co sharers are not allowing him to cultivate the land to the extent of share of respondent No. 2. On the said application, Station House Officer, Police Station, Mohindergarh submitted a Kalandra under Section 145 Cr.P.C. In the said Kalandra the Police had stated that all the cosharers are joint owners in possession of the land in dispute but there is apprehension of breach of peace. The learned Sub Divisional Magistrate initiated proceedings under Section 145 Cr.P.C. and on 31.10.1995 passed the order that dispute is likely to induce breach of peace. The parties were directed to appear before the Sub Divisional Magistrate, Mohindergarh. They were also directed to file their claims and affidavits. On 15.11.1995 the parties appeared before the Sub Divisional Magistrate, Mohindergarh. The case was taken up on 20.11.1995. The Sub Divisional Magistrate passed the order attaching the entire land. Tehsildar, Mohindergarh was appointed as the Receiver.

It is contended that the said order is illegal and without jurisdiction. The land is jointly owned and is in possession of the coowners. In such a situation, the impugned order could not be passed. The learned Sub Divisional Magistrate is also asserted to have not followed the procedure prescribed. Even civil litigation between the parties was pending. On these broad facts, the petition had been pressed.

The same has contested by Madan Lal. His defence was that petitioners are forcibly and arbitrarily restraining Madan Lal respondent from cultivating the land. The land was not disputed to be jointly owned. It was asserted that when it is jointly owned and possessed, the right of respondent Madan Lal could not be ignored.

During the course of arguments, learned counsel for the petitioners contended that the land was jointly owned and possessed and in such circumstances strict provisions of Section 145 Cr.P.C. will not be attracted.

At this stage, reference to some of the documents would be in the fitness of things. Annexure P1 is the Kalandra under Section 145 Cr.P.C. submitted by the officerincharge, Police Station, Mohindergarh. Even it refers to the fact that land is jointly owned but the second party i.e. Madan Lal wants to cultivate the land of his share. He pointed that there is likelihood of breach of peace. There is no controversy that in the revenue records also the land is shown to be jointly owned and possessed. Annexure P4 is the order passed by Sub Judge Ist Class, Mohindergarh. Madan Lal respondent had filed a civil suit and during the pendency of the said suit, had sought an adinterim injunction restraining the petitioners and others from interfering in his possession. The temporary injunction was refused. The learned Subordinate Judge concluded that the share has not been allotted to any cosharer. The property is still joint. None of the cosharers is in exclusive possession is in exclusive possession of any particular portion of the land. For purposes of the present order, it is clear that the land was in joint possession of the coowners.

In this process when land was owned by the cosharers had possessed jointly, Section 145 Cr.P.C. could not be invoked. It was not within the competence of the Magistrate in that event to attach the property on the pretext that there is likelihood of breach of peace. This Court had considered this dispute in the case of Harbans Lal and another v. Hans Raj and others, 1980 C.L.R. 218. Therein also the property was jointly owned and possessed. It was held that proceedings under Section 145 Cr.P.C. could not be initiated. In paragraph 7 the findings arrived at were :

"The consistent view taken in all the authorities is that unless the complainant alleges exclusive possession of a property, it is not within the competency of the authorities to start proceedings under Section 145 of the Code. Under subsection 6 of Section 145 of the Code, the Magistrate has to decide as to which of the two or more contesting parties was in possession of the property. The finding on this point by the SubDivisional Magistrate in the instant case is not called for because it is admitted by Hans Raj complainant himself and affirmed in the report of the S.H.O. Police Station, Lambi dated February 28, 1979 that he has been in joint possession of the land with his other brothers. Under these circumstances the proceedings started by the SubDivisional Magistrate under Section 145 of the Code are illegal, misconceived and are liable to be quashed."

Subsequently, in the case of Ram Piari and others v. Smt. Dharmi Devi and another, 1989(2) C.L.R. 177, Rachhpal Singh v. State of Haryana and others, 1991(1) C.L.R. 503 and Labh Singh and another v. Jaswinder Kaur and others, 1992(1) C.L.R. 24 the same view was reiterated. The consistent view with which I concur, thus, is that when the land is jointly possessed and owned, provisions of Section 145 Cr.P.C. would not be attracted. More so when temporary injunction has already been refused to respondent No. 2. In these circumstances, the order passed by the learned SubDivisional Magistrate cannot be sustained.

For these reasons, the petition is allowed and the impugned order is quashed.