Hiramani Shukla @ Haribansh Shukla vs The State of Jharkhand and Others

Jaya Roy, J.—Heard the learned Counsel for the petitioner and opposite parties. This revision application has been filed by the first party/opposite party against the order dated 2.4.2007 passed by the 2nd Additional Sessions Judge, F.T.C.-III, Daltonganj, Palamauuu in Criminal Revision No. 105 of 2003 setting aside the orders dated 4.7.2003 and die order dated 28.7.2003 passed by the learned Sub-Divisional Magistrate, Sadar Daltonganj in Misc. Case No. 297 of 2003 under Sections 145 and 146(1) of the Code of Criminal Procedure.

The short fact, necessary for the present revision application is that on 4.7.2003 the present petitioner who is first party filed an application before the Sub-Divisional Magistrate, Sadar, Daltanganj for initiation of a proceeding u/s 145 Cr. P.C. over the lands in question against the second party (opposite party). In the said petition at para-2 the petitioner has stated:

That in amicable arrangement arrived at between his co-sharer, the petitioner has/had been exercising his title and possession over the land fully stated in a separate schedule appended here-in-below at the foot of this petition and forming a part thereon. The same shall here-in-after be referred to as the land in dispute for the sake of convenience and brevity. Besides the land in dispute, the petitioner has other land also but the same is not essential to be mentioned because the dispute does not relate to those lands.

After hearing the first party the Sub-Divisional Magistrate initiated a proceeding u/s 145 Cr. P.C. against the both the parties by order dated 4.7.2003.

Thereafter on 16.7.03 the first party petitioner again filed a petition u/s 146 Cr. P.C. stating therein that after initiation of this proceeding ;the second party/opposite party has become much violent and they are making preparation for disposing the first party from the lands in question and they are trying to take the physical possession over the lands in question. Thus this has created a serious situation and if the suitable action be not taken, the blood shed may occur at the spot. Therefore they have prayed to attach the subject matter the proceeding u/s 146 Cr. P.C. and to appoint a receiver to prevent such blood shed at the pot.

After hearing the matter, the S.D.M. attached the subject matter (lands in question) and appointed the officer-in-charge of Bishrampur Police Station as receiver and directed him to take possession of the same, by his order dated 28.7.2003 u/s 146 of the Cr. P.C.

Second party/opposite party filed a revision before the Session Judge, Palamau at Daltonganj which was registered as Criminal Revision No. 105 of 2003 wherein they have prayed for quashing the aforesaid two orders i.e. 4.7.2003 and 28..7.2003. After hearing both the parties, the 2nd Additional District and Session Judge, Daltonganj allowed the revision application by his order dated 2..4.2007 and set aside aforesaid two orders on the ground that a proceeding u/s 145 Cr. P.C. can not be initiated in a case where the parties are in joint possession of the properties and if the same are their joint property.

The present petitioner has preferred the instant revision against the aforesaid order as stated earlier. After hearing both the parties in the admission stage 1 find the present petitioner who is first party, has clearly stated in para 2 of his petition filed for initiating a proceeding u/s 145 Cr. P.C which is Annexure-1, that the lands in question are admittedly joint properties of both the Parties. It further shows that there is No partition by metes and bounds only the co-sharer arc cultivating the land separately for the sake of convenience. It is settled principle of law and decided in numbers of cases that proceeding u/s 145 Cr. P.C. in dispute regarding the possession between cosharer of joint family unless there is partition between the co-sharers by metes and bounds, proceeding u/s 145 Cr. P.C. is not maintainable. Even if the parties are cultivating separately different portions of the lands belonging to their joint family, every co-sharer in law is deemed to be in possession of the entire joint family. Thus as the law recognizes all the co-sharer/to be in possession of every inch of the joint family property, one co-sharer cannot be restrained from going over the same merely because for the sake convenience other co-sharer has cultivated the same. In view of this principle a Magistrate cannot grant relief to the first party/petitioner by passing a prohibitory order against the second party/opposite party.

Added to that while considering a similar issue, the Hon''ble Patna High Court has held in the case of Kaillash Nonia v. Shibu Nonia and Anr. reported in ECC 1991 472 (pat)

Proceedings u/s 145, initiated in a case of dispute between co-sharers of joint property, is not maintainable unless the property is ''partitioned between parties by metes and bounds.

Further the Hon''ble Allahabad High Court has also taken the same view in case of Jayanti Prasad and Others Vs. Kamal Narain and Others, .

In view of the aforesaid position, in my opinion, that Magistrate was not justified in initiating the proceeding u/s 145 Cr. P.C. when the parties are in joint politician of the subject of dispute, Therefore the revision court below has rightly quashed the proceeding initiated u/s 145 Cr. P.C.

There being No merit in this revision application, it is dismissed.