Jeet Singh and ors. vs Sub Divisional Magistrate and ors..

A.S. Nehra, J.

The petitioners have filed this petition under section 482 of the Code of Criminal Procedure for quashing the impugned order dated 22101991 (Annexure P3) passed by the Sub Divisional Magistrate, Abohar, under sections 145(1) and 146, Code of Criminal Procedure.

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

The police submitted a report u/s 145 of the Code of Criminal Procedure stating that Bhagirath Ram and Nanu Ram, respondent Nos 2 and 3, had purchased the land, in dispute, from the Department of Custodian for Rs. 1,37,000/ and they had obtained possession of the land, in dispute, vide report roznamcha No. 116 dated 14111983 ; that since 14.11. 1983 they are in possession of the land, in dispute, and that before 14111983, the petitioners were in possession of the land, in dispute. As there was apprehension of breach of peace at the time of harvesting the crop, therefore, a request was made by the police that both the parties be restrained from entering the land, in dispute. The SubDivisional Magistrate on 22.10.1991 passed the impugned order which reads :

"Whereas from the police report dated 8101991 which was forwarded by the D.S.P., Abohar on 14101991, I am satisfied that a dispute likely to cause breach of peace concerning the possession of land measuring 84 KIOM bearing Khasra Nos. 127 M/16(80), 17(80), 18(8 0), 19(514), 22(66), 24(80), 25(80), 23(80), 135M/3(80), 4(80), 5(8 0) situated in village Tootwala, Tehsil Abohar exists between the parties.

2A. You are, therefore, directed to attend this Court on 8.11.1991 at 900 A.M. in person or through pleader and further to put in your claims and written statements regarding actual possession of the land, in dispute. You are also directed to put in such documents and evidence in support of your claim upon which you may rely to substantiate your claim for possession.

Since the matter is of emergent nature, so the land, in dispute, along with standing crop, if any, is attached and the Field Kanungo, Kallar Khera, is appointed Receiver to look after the same."

3A. The learned counsel for the petitioners has argued that the petitioners were admittedly in possession of the land, in dispute, before the initiation of the proceedings under Section 145(1) of the Code of Criminal Procedure; that the stay order granted to the petitioners on 491990 was confirmed by the Additional Senior Sub Judge, Fazilka, on 27101990 vide Annexure PI; that respondent Nos. 2 and 3 have been restrained from interfering with peaceful possession of the petitioners and that, therefore, the proceedings under Sections 145 and 146, Code of Criminal Procedure, cannot be allowed to proceed when the civil litigation is already pending between the parties, In support of his argument, the learned counsel for the petitioners has relied upon Ram Sumar Puri Mahant v. State of U.P., AIR 1985 Supreme Court 472 : 1985(1) Recent Criminal Reports 278.

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 and 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 those proceedings.

The learned counsel for respondent Nos. 2 and 3 has further submitted that the injunction granted by the Additional Senior Sub Judge, Fazilka on 27101990 has been vacated by the learned District Judge., Ferozepur, on 29111991, vide Annexure P4, and that the argument of petitioners is not tenable in view of the latest pronouncement of their Lordships 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 on 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 disputed property. The order is subject to 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 respondent 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 this object, emergency provision for attaching the subjectmatter 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 Divisional Bench upheld the order passed by the Sub Divisional Magistrate.

In view of the Supreme Court judgment in Jhunamal alias Devan Dass''s case (supra) and the latest judgment of this Court in Gurdial Singh Mann v. Dharampal Singh Mann and another, 1990(1) Recent Criminal Reports 272 : 1990(1) C.L.R. 47 , relied upon by the learned counsel for respondent Nos. 2 and 3, there is no merit in this petition and therefore the same is dismissed.