Jeet Singh and ors. vs S.D.M.Abohar and ors.

A.S. Nehra, J.

This revision petition is directed against the order dated 3111992 passed by the Sub Divisional Magistrate, Abohar, by which it has been held that respondents Nos. 2 and 3 (Bhagirath Ram and Nanu Ram, respectively) were in possession of land, in dispute, at the time of the issuance of order under Section 146, Code of Criminal Procedure, and notice under Section 15(1), Code of Criminal Procedure, and, therefore, these respondents have been held in possession over the land, in dispute and entitled to retain the possession until ousted by due course of law, and the petitioner have been strictly forbidden to disturb the possession in the meantime.

Briefly stated, the facts of the case are as under :

"The police submitted a report under Section 145 of the Code of Criminal Procedure regarding the land, in dispute, on the ground that a dispute likely to cause breach of peace existed between the parties over the possession of the land, in dispute. On receipt of the police report, notice under Section 145(1) Code of Criminal Procedure, was issued to the parties for filing their respective claims and objections regarding possession of the land, in dispute. Since the matter was of emergent nature, so the land in dispute, was attached and the kanungo was appointed as a Receiver to look after the land, in dispute. Both the parties appeared in the Court of SubDivisional Magistrate and submitted necessary documents in support of their respective claims. The case of respondents Bhagirath Ram and Nanu Ram was that they had purchased the land, in dispute. in open auction and possession of the same was obtained by them, vide report roznamucha No. 116 dated 14111983 and that since 14111983 they are in peaceful possession of the land, in dispute. On the other hand, the case of the petitioners was that they are in possession at the spot and that there was no need for preparing the police report under Section 145 of the Code of Criminal Procedure, regarding the land, in dispute. The petitioners further submitted that they had obtained a stay order from the civil Court regarding the land, in dispute. The learned counsel for the petitioners has contended that admittedly the suit for permanent injunction, filed by the petitioners is pending in the civil Court and that, therefore, preliminary proceedings under Section 145 and 146, Code of Criminal Procedure, cannot be initiated and allowed to continue. In support of his argument, he has relied upon Ram Sumer Puri Mahant v. State of U.P., 1985(1) Recent Criminal Reports 278 : AIR 1985 Supreme Court 472 ."

The learned counsel for respondent Nos. 2 and 3 has contended that Ram Sumer Puri Mahant''s case (supra) is not applicable to the case in hand because, in that case, the title suit for possession and injunction in respect of the property, in dispute, was dismissed though an appeal against the said judgment and decree was pending, when proceedings under Section 145, Code of Criminal procedure, were initiated. He has further submitted that the facts of the case in hand are entirely different inasmuch as the proceedings in the Court of Sub Judge are at the initial stage and no final decree has yet been passed in these proceedings.

The learned counsel for respondents No. 2 and 3 has further submitted that the temporary injunction granted, vide Annexure P1, by the Additional Senior Sub Judge, Fazilka, on 27101990 has been vacated by the District Judge, Ferozepur, on 29111991, vide Annexure P4, and that the argument of the petitioner is not tenable in view of the latest pronouncement of their Lordship of the Supreme Court in Jhunamal alias Devandass v. State of Madhya Pradesh and others, 1989(1) Recent Criminal Reports 428 : AIR 1988 Supreme Court 1973 , wherein, after considering Ram Sumer Puri Mahant''s case (supra), it was held as follows :

"The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145, Criminal Procedure Code, made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the Civil Court. An order made under Section 145, Code of Criminal Procedure, deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to the decision of the Civil Court. The unsuccessful party, therefore, must get relief only in the Civil Court. He may move the Civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached."

The learned counsel for respondents Nos. 2 and 3 has further relied upon a Division Bench judgment of this Court in Mohinder Singh v. Dilbag Rai, 1976 PLR 803(DB), wherein it was held :

"Section 145, Code of Criminal Procedure, is a beneficial Section enacted with the express object of preserving the peace. For the attainment of the object, emergency provision for attaching the subject matter of dispute has been provided in it. Under this Section the Criminal Court can only pass a temporary order and the rights of the parties in fact are to be settled by the Civil Courts."

The Divisions Bench upheld the order passed by the Sub Divisional Magistrate.

In view of the Supreme Court judgment in Jhunamal alias Devandass'' case (supra) 1989(1) Recent Criminal Reports, 428, and the latest judgment of this Court in Gurdial Singh Mann v. Dharampal Singh Mann and another, 1990(1) Recent Criminal Reports 273 : 1990(1) CLR 47 , relied upon by the learned counsel for respondents Nos. 2 and 3, there is no merit in this revision petition and, therefore, the same is dismissed.