Harbans Lal and Another vs Hans Raj and Others

J.M. Tandon, J.—Harbans Lal, Bachna Ram Petitioners, Hans Raj Respondent and Kaur Chand are sons of Moti Ram. They jointly own land in Arnawali and Kutianwali, Tehsil Muktsar. Hans Raj submitted a complaint to the Senior Superintendent of Police Faridkot alleging that the land owned by him and his three brothers in Arnawali and Kutianwali is in their joint possession and the cultivation thereof is jointly supervised by them. His brothers did not give him, his share of the crop in Kharif 1978. He had further been threatened that if he insisted on the demand then harm may be done to his life. He prayed for protection and for starting proceedings u/s 406, Indian Penal Code against Kaur Chand and Bachna Ram. A copy of this complaint was marked to the S.H.O. Police Station Lambi. The S.H.O. made enquiry and submitted his report dated February 28, 1979 u/s 145 of the Code of Criminal Procedure (hereafter the Code) stating that Hans Raj and his brothers own and cultivate land jointly in villages Arnawali and Kutianwali. The share of the produce for Kharif 1978 has not been given to Hans Raj. His brothers have grabbed his share. Hans Raj has also complained that his brothers do not allow him to cultivate the land separately and they want to grab the whole of the joint land forcibly. The wheat crop is near harvesting. There is liklihood of dispute between the parties and they may harm each other physically. It was recommended that the land may be attached and a Receiver appointed for the income of the standing crop till the decision of the dispute between the parties.

On receipt of the report of the S.H.O. Lambbi, the Sub-Divisional Magistrate passed the preliminary order it reads:

Whereas from the police report of Police Station, Lambi am satisfied that a dispute likely to cause breach of peace exists concerning possession of land 1080 kanals, 19 marlas situated in village Kutianwali and Arniwala Wazira Sub Tehsil Malout between the parties mentioned above list of Khasra numbers are attached.

Now, therefore, in exercise of the powers of conferred u/s 145(1) of the Code, I direct the parties to attend this Court in person or by a pleader on the 4th April, 1979 and to put in written statement of their respective claims as respects the facts of actual possesson of the subject matter of dispute and further require them to put in such documents or to adduce, the evidence of such persons as they rely upon in support of their respective claims.

The police report shows that there is imminent apprehension of breach of peace between the parties as a result of dispute stated ad hoc. Being a case of emergency I direct that the subject matter of dispute shall remain attached pending completion of enquiry. The Naib Tehsildar Malout shall act as Superdar. A copy of this order be sent to the S.H.O. Lambi for service on the parties concerned. A copy of this order be also placed on a conspicuous place within the area where the subject matter of dispute is situated.

In the present petition u/s 482 of the Code filed by Harbans Lal and Bachna Ram, the prayer made in that the proceedings u/s 145 of the Code which are now pending in the Court of Sub-Divisional Magistrate, Faridkot on transfer from that of Sub-Divisional Magistrate Muktsar be quashed.

The learned Counsel for the Petitioners has contended that in view of the fact that Hans Raj Respondent admitted in his complaint to the Senior Superintendent of Police, which was affirmed by the S.H.O. Lambi in his report dated February 28, 1979 as well that the land was in his joint possession with his three brothers, the proceedings u/s 145 of the Code could not be initiated. Reliance has been placed on Nahar Singh Vs. The State, Hanumappa v. Kondappa AIR 1964 Mys 195 The argument of the learned Counsel for Hans Raj Respondent is that inspite of the fact that he and his brothers have been in joint cultivation of the land, he was not given his due share of the crop in Kharif 1978. He rather apprehended that he will not be given his share of the crop in Rabi 1979 as well. There being a dispute between the parties, the Sub Divisional Magistrate was competent to initiate proceedings u/s 145 of the Code. In my opinion the contention of the learned Counsel for the Petitioner must prevail.

In 1951 Rajasthan 156 (supra) it was held that an order Section 145 of the Code could only be passed in favour of a party in exclusive possession of the property. No declaration of joint possession can be made under that Section.

In 1964 Mys 195 (supra) it was held that the mere putting forward of a case of joint possession by one party while the other party claims exclusive possession does not take the matter out of the purview of Section 145 of the Code. As long as there is a dispute relating to a land which is likely to cause a breach of peace and the possibility of declaring one of the parties to be in actual possession, the requirements of Section 145 are satisfied. Otherwise all that one of the parties need do to secure the termination of the proceedings is to plead joint possession. This would defeat the object of Section 145 as a preventive measure against breach of the peace. The enquiry has to proceed until the Magistrate arrives at a finding whether one of the parties is in exclusive possession or both or in joint possession. In the former case he has to issue an order under Sub-section (6) declaring such party to be entitled to possession until evicted in due course of law and forbidding all disturbances of such possession. If he finds the parties to be in joint possession, no such declaration can be made and the proceedings have to be dropped.

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 u/s 145 of the Code. Under Sub-section (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 Sub Divisional 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 Sub Divisional Magistrate u/s 145 of the Code are illegal, misconceived and are liable to be quashed.

The learned Counsel for Hans Raj Respondent has argued that impugned order of the Sub Divisional Magistrate starting proceedings u/s 145 of the Code and attaching the land of the parties is of interlocutory nature and the inherent powers u/s 482 of the Code should not be invoked. I am not impressed by this contention. It has been held above that the starting of proceedings u/s 145 of the Code by the Sub Divisional Magistrate in this case is misconceived and illegal. The prayer made by the Petitioner is that the very proceedings be quashed. Under these circumstances it would be appropriate to invoke the powers u/s 482 of the Code to give redress to the aggrieved party.

In the result, I accept the petition and quash the proceedings u/s 145 of the Code including the preliminary order passed therein.