Hazari vs Jagdish

K.S. Kumaran, J .

First respondentJagdish, who is the brother of Hazari, petitioner herein, presented an application under Section 145 read with Section 146 Cr.P.C. before the Executive Magistrate, Narnaul (File No. 18 Cr.P.C.1996) on 26.3.1996. On the same day, the Executive Magistrate, Narnaul passed an order (annexure P3) that it was made to appear that a dispute likely to cause breach of peace existed between them concerning an extent of 141 kanals and 3 marlas of land situated in village Bamanwas Nau (hereinafter referred to as the land in dispute), that he was yet to decide as to which of the parties was in possession, that he was satisfied that there was imminent danger of breach of peace and, therefore, he was ordering attachment of the land in dispute with the standing crops. He also authorised the Naib Tehsildar (M), Narnaul to attach the land with the crops and keep the same in his possession until the rights of parties and the claim of possession are determined by a court of competent jurisdiction.

The Executive Magistrate, Narnaul also passed a similar order on 21.5.1996 authorising the Naib Tehsildar (Agrarian) instead of the Naib Tehsildar (M) to effect the attachment and keep the property in his possession, as directed earlier (annexure P4). Subsequently, on 29.5.1996, vide annexure P5, the Executive Magistrate passed an order confirming earlier orders passed by him and directing that the land in dispute shall remain attached till final decision by the Civil Court and that the Naib Tehsildar (Agrarian) who has already been appointed as Receiver, should lease out the land.

In doing so, the Executive Magistrate, Narnaul took note of the allegation of Jagdish (1st respondent herein) that he is the owner in possession of half share of the land in dispute which has not been partitioned, that the cultivation of the parties is joint, that there is well with an electric motor, that an application for partition is pending in the Court of the Assistant Collector 1st Grade, Narnaul, and that the petitioner and his men had interfered with the possession of the 1st respondent herein. the Executive Magistrate also took note of the objection of the petitioner herein that the 1st respondent had no locus standi to file the application, that the petitioner was neither given any notice nor heard before the passing of the order of attachment, that the 1st respondent had filed a civil suit for permanent injunction in the year 1991, that his application for interim injunction was dismissed by the Civil Court on 17.11.1992, that the appeal against the same was also dismissed on 8.12.1993, that the application filed by the 1st respondent before the Executive Magistrate was not maintainable since the Civil Court had found the present petitioner to be in possession, that the present petitioner was in possession of the entire land in pursuance of an agreement to sell, that in similar proceedings, an order was passed on 8.3.1994 holding that there was no apprehension about any breach of peace etc.

The Executive Magistrate found that the agreement for sale is not registered and merely on the basis of the agreement for sale, the present petitioner cannot become the owner in possession of the land, that there is no sale deed in his favour, and that it is clear that the 1st respondent and the petitioner herein are joint owners in possession of the land in dispute to the extent of half share each. He also held that there is apprehension of breach of peace between the parties regarding the land in dispute and, therefore, the land in dispute shall remain attached till the final decision of the Civil Court, and the Naib Tehsildar (Receiver) should lease out the property. This order was passed on 29.5.1996 (annexure P5). As against this, the present petitioner filed Criminal Revision Petition No. 46 of 1996 on the file of the Additional Sessions Judge, Narnaul, which was dismissed by him as not maintainable on the ground that the order of attachment passed under Section 146(1) of the Code was only an interlocutory order.

Aggrieved by the same, the petitioner has filed this application under Section 482 Cr.P.C. for setting aside the orders annexures P3 to P5. The contention of the petitioner is that the 1st respondent Jagdish filed Civil suit No. 136 of 1992 against the petitioner herein for permanent injunction restraining him from interfering with his joint cultivation of the land and using pumpset, that he filed an application for interim injunction also, but the Civil Court passed an order that the 1st respondent is not entitled to use the tubewell installed by the petitioner and that the 1st respondent cannot disturb the exclusive possession of the petitioner herein. Whereas the petitioner shall not interfere with the cultivation and possession of the 1st respondent in respect of the land which came to his share. The petitioner also contends that the appeal filed by the 1st respondent was dismissed by the learned District Judge on 8.12.1993.

The petitioner further contends that on 23.2.1993, Police Station, Narnaul submitted a Kalendra under Section 145 in respect of the very same lands but the Executive Magistrate, by his order dated 8.3.1994, did not accept the contention that there was any apprehension of breach of peace, observing that a civil suit was pending between the parties. The petitioner also claims that proceedings for partition are pending before the Revenue Court.

Therefore, the petitioner contends that in these circumstances, the orders impugned in this petition are not sustainable. The petitioner contends that even the Executive Magistrate has observed in his order that the land in dispute is jointly owned and possessed by the coowners. He, therefore, contends that proceedings under Section 145 Cr.P.C. cannot be initiated. He also contends that in view of the dismissal of the earlier application under Section 145 Cr.P.C., the latter application by the 1st respondent himself is not competent.

Though opportunity had been given, the 1st respondent herein does not appear to have filed any reply. I have heard the counsel for both the sides and perused the records.

One of the contentions raised by the petitioner is that the 1st respondent herein filed Civil Suit 136 of 1992 on the file of the Sub Judge 1st Class, Narnaul against the petitioner herein and his wives for a permanent injunction with reference to the very same properties which are in dispute in the present proceedings and also filed an application under JUDGMENT 39 Rules 1 and 2 of the Civil Procedure Code for an interim injunction. The petitioner contends that this application for interim injunction was disposed of by the learned Sub Judge by his order dated 17.11.1992 (annexure P1) and the learned Sub Judge has ordered that the 1st respondent herein cannot disturb the exclusive possession of the petitioner herein over the portion of the land in his possession but the petitioner herein will have no right to interfere with the cultivating possession of the 1st respondent herein for the remaining part of the land of his share excluding the land measuring 70 kanals 11 marlas and also restraining the petitioner herein from interfering with the cultivating possession of the 1st respondent herein over the land in dispute except the land measuring 70 kanals and 11 marlas as detailed in the written statement. The learned Sub Judge also held that the 1st respondent was not entitled to use the tubewell installed by the petitioner herein. In passing this order, the learned Sub Judge took into consideration the fact that the 1st respondent, who was the plaintiff in that suit, did not claim to be in exclusive possession of any specific khasra number of the suit land. But he found that the petitioner herein is in exclusive possession of the land measuring 70 kanals 11 marlas detailed in paragraph1 of the written statement and also the exclusive owner of the pumpset installed by him in the well situated in Killa No. 8 of Rectangle No. 20. Therefore, the learned counsel for the petitioner contends that when the Civil Court is already seized of the matter and has granted injunction, of course, an interim injunction in the terms mentioned above, the parallel proceedings under Sections 145 and 146 of the Cr.P.C. are not maintainable. I agree with the learned counsel for the petitioner in this respect. Annexure P1 shows that injunction has been granted by the Civil Court in respect of the very same properties in a suit between the same parties. Learned counsel for the petitioner also contends that the appeal filed against this order was dismissed by the learned District Judge on 8.12.1993 which is also not disputed. It is not claimed by the 1st respondent that this order has been varied in any manner. So when the Civil Court has passed an order of interim injunction with reference to the very same land in dispute in a suit between the very same parties, parallel proceedings under Sections 145 and 146 Cr.P.C. are not maintainable at all. In this regard, the learned counsel for the petitioner relies upon the decisions in Tek Ram v. Sub Divisional Magistrate, Panipat, 1997(2) Recent Criminal Reports 549 , Ram Sumer Puri Mahant v. State of U.P. and others, A.I.R. 1985 S.C. 472. These decisions certainly support the contention of the learned counsel for the petitioner. A perusal of the order annexure P5 by which the initiation of the proceedings under Section 145 Cr.P.C. and appointment of a Receiver have been confirmed by the Executive Magistrate, shows that order of the Civil Court was brought to the notice of the learned Magistrate, and yet, he has not considered this fact that there cannot be parallel proceedings when the Civil Court has granted interim injunction with reference to the same properties in a dispute between the same parties. The learned Executive Magistrate should have considered this factor and decided that there was no ground to initiate the proceedings under Section 145 Cr.P.C. at all.

It is noteworthy that this order annexure P3 by which the proceedings were initiated and a Receiver was appointed, which was later confirmed by annexure P5, emanated from an application filed by the 1st respondent directly before the Executive Magistrate. No Kalendra as such was filed by any police station in this regard. Whereas on as earlier occasion, a Kalendra was submitted by the Police Station, Nangal Chaudhary on 23.2.1993 with reference to the very same disputed lands. There also, the petitioner and the 1st respondent are the contesting parties. But on that Kalendra, the learned Executive Magistrate did not see it necessary to initiate the proceedings under Section 145 Cr.P.C. taking note of the Civil suit between the parties. The learned Executive Magistrate at that time held that both the parties will be bound by the order of the Civil Court and that there was no apprehension of breach of peace. This order was passed on 8.3.1994 (annexure P2). The learned counsel for the petitioner contends that when on 8.3.1994 with reference to the very same properties, on a Kalendra filed against the very same parties, the learned Executive Magistrate had refused to initiate proceedings under Section 145 Cr.P.C. in view of the civil suit, within two years thereafter, the Executive Magistrate cannot initiate proceedings under Section 145 Cr.P.C. with reference to the very same properties and between the same parties, especially so, when the Civil Court has passed an order of injunction. In my opinion, this contention of the petitioner is also well taken. This Court in Gram Panchayat Village Daroli Jat v. The SubDivisional Magistrate, Mohindergarh (Criminal Miscellaneous No. 9738M of 1995) decided on 1.8.1997) : 1997(4) RCR (Crl.) 624 relying upon the decision in Munawar Bhat v. Gulla Shah and others, A.I.R. 1967 J&K 129 and Elimuddin Sarkar v. Umed Ali Bapari and others, A.I.R. 1936 Calcutta 659, held that fresh proceedings under Section 145 Cr.P.C. with reference to the very same properties in dispute and between the same parties or persons claiming through them are not maintainable when the dispute between the same parties with regard to the same property has been decided one way or the other on the previous proceedings under Section 145 Cr.P.C. Therefore, on this ground also, the initiation of fresh proceedings under Section 145 Cr.P.C., when previously the learned Magistrate refused to initiate the proceedings under Section 145 Cr.P.C. after taking note of the Civil Proceedings, cannot be sustained. Therefore, in these circumstances, I am of the view that the orders annexures P3, P4 and P5 cannot be sustained.

Accordingly, this petition is allowed quashing the impugned orders annexures P3, P4 and P5.