Kalyaniammal vs Krishnasamy Gounder and 2 others

Thangamani, J.—One Chandrasekara Udayar is the original owner of two pieces of land measuring 0.10.0 nectares in R.S. No. 76/1 and

0.40.5 hectares in R.S. No. 32/7 of Kenjimangalam village, East Vanur Taluk in South Arcot District. The present first Respondent Krishnasamy

Gounder, claiming that he is a cultivating tenant of the land under Chandrasekara . Udayar and that the Petitioner and Respondents 2 and 3 herein

are trying to dispossess him, filed an application u/s 145, Code of Criminal Procedure in M.C. No. 7/1987 before the Executive Second Class

Magistrate, Vanur. He also took steps to get his name registered as a tenant under the Record of Tenancy Act. The Petitioner who is the wife of

Chandrasekara Udayar pleaded therein that item 1 of the lands has been settled by her husband on their daughter Santhanalakshmi under the deed

dated 10.2.1970. She has been appointed as guardian of the minor daughter in the said settlement deed. The second item is the ancestral land of

her husband. They had not leased out the land to anybody and they alone were cultivating the same. The present first Respondent and others in

order to grab the property instituted O.S. No. 679/1985 in respect of these lands in the Court of District Munsif of Tindivanam and obtained an

interim injunction. However, after enquiry the petition was dismissed and the injunction was vacated C.M.A. No. 5/87 preferred by the first

Respondent and others against the said order is still pending. In the impugned order dated 15.3.1990, learned Executive Magistrate has stated that

the Petitioner has filed O.S. No. 1104 of 1989 in the Court of District Munsif, Tindivanam claiming title to item 1 of the suit properties and that in

the same Court her daughter Santhanalakshmi also has instituted O.S. No. 83.of 1986 claiming the property as hers and that both suits are

pending. The order of the Magistrate also reads that O.S. No. 679/1985 was pending and the evidence on record establishes that item 2 of the

properties was not in the enjoyment of Kalyani Animal and others and that he was dismissing the application. Evidently this order is intelligible. It is

not known what were records considered and how they led to that conclusion.

Learned Counsel for the Petitioner submits that while A.S. No. 83/1986 was dismissed for default on 21.3.1990, no appeal against the decree

in O.S. No. 679/85 is pending. The injunction petition I.A. No. 1503 of 1985 in O.S. No. 679/85 filed by the tenant in the Civil Court in respect

of the Very same property between the parties herein has already been dismissed. The appeal preferred by the first Respondent was also

unsuccessful. Thus the Civil Court has held in O.S. No. 679/1985 that the Petitioner is in absolute enjoyment of the property. When a competent

Civil Court has found possession in favour of the Petitioner, this order of the Executive Second Class Magistrate u/s 145, Code of Criminal

Procedure is unsustainable.

We shall proceed to deal with the rival contentions of the parties. In Ram Sumer Puri Mahant Vs. State of U.P. and Others, cited by learned

Counsel for the Petitioner a title suit for possession and injunction in respect, of certain property was instituted before the Civil Court. The suit was

dismissed. During the pendency of the appeal, proceedings u/s 145 Code of Criminal Procedure were initiated with regard to the same property.

In that proceedings the Magistrate has passed a preliminary order u/s 145(1), Code of Criminal Procedure and also attached the property. The

aggrieved party challenged that order in revision. The High Court refused to interfere with the said order. But the Apex Court while quashing the

proceedings u/s 145, Code of Criminal Procedure observed that:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel

criminal proceeding u/s 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a

decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the

civil court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate

protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be

allowed to be wasted over meaningless litigation.

Whereas Miss Sumathi learned Counsel for the first Respondent contended that the concluded order made by the Magistrate of competent

jurisdiction should not be set at naught merely because the unsuccessful party has approached the civil Court. An order made u/s 145, Code of

Criminal Procedure deals only with the factum of possession of the party as on a particular day. In support of her claim she placed before this

Court the decision in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, . In that case the property was in possession of the

mortgagee who is said to have leased out the same to the Petitioner and also delivered possession thereof. The entering of possession by the

Petitioner became the subject matter of dispute. Apprehending breach of peace, the Police initiated proceedings u/s 145, Code of Criminal

Procedure. The Magistrate made a preliminary order. The proceedings continued for about 3 years. The Magistrate made the final order holding

that the Petitioner is entitled for the occupation of the shop unless he is evicted by procedure established by law. Subsequently the Respondent

filed a suit for injunction and obtained temporary injunction against the Petitioner. But on appeal the temporary injunction was vacated by the

District Judge. After became unsuccessful in the proceedings u/s 145, Cr.P.C. and also in the civil Court in the suit for injunction the Respondent

moved the High Court u/s 482, Code of Criminal Procedure to quash the proceedings u/s 145, Code of Criminal Procedure The High Court

accepted the petition and quashed the proceedings by following the judgment of the Supreme Court in Ram SumerPuri case. When the matter

came up before the Apex Court, the intent and purport of Ram Sumer Puri Mahant Vs. State of U.P. and Others, has been explained in this

decision cited by Respondent in this manner:

It is true that in cases of dispute regarding immovable property 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 however mean that a concluded order u/s 145, Cr.P.C, 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

u/s 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 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.

Learned Counsel for the first Respondent/tenant also relied on the decision of this Court in S.P. Nagarathinam Vs. Sub-divisional Magistrates

and Sub-collector, Thanjavur and others, . The question there was whether simply because a civil suit was filed, will it operate as a total bar for

initiation of any proceedings u/s 145, Code of Criminal Procedure Held: Unless there is an order or decree binding upon the parties, mere filing of

a civil suit at an earlier point of time, cannot act as a cover up for all acts done by the Plaintiff with regard to the suit property at any subsequent

point of time though his action gives rise to circumstances warranting initiation of proceedings under S. 145, Cr.P.C.

The contention of the Petitioner however is that even prior to the filing of application u/s 145, Code of Criminal Procedure the civil Court has

dismissed the injunction petition filed by the present first Respondent/tenant in respect of this property. Since the competent civil Court was

already'' in seisin of the entire property and is in favour of the present Petitioner, the impugned order of the Executive Magistrate is unsustainable.

As the Apex Court has held in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, :

S. 145 is intended to provide a special remedy for the prevention of breach of peace arising out of a dispute relating to immovable property. Its

primary object is to maintain the public peace and not to decide disputes between the contending parties or adjudicate upon the rights of the

parties to possession. Now, that the civil Court is seized of the matter, it is desirable that such parallel proceedings in respect of the same subject

matter and dispute should not be allowed to continue in the criminal Courts as it amounts to an abuse of the process of the Court which is one of

the grounds for invoking Section 482, Cr.P.C.

So it cannot be disputed that the decree of the civil Court is binding on the criminal Court in a matter like this. The ratio of the decision in Ram

Sumer Puri Mahant Vs. State of U.P. and Others, 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. In this case the civil court has already negatived the plea of the first Respondent/tenant for injunction.

In other words the civil court has not recognized the possession claimed by the tenant. While so, it is not open to the Executive Magistrate to take

a contrary view and pass an order u/s 145, Code of Criminal Procedure that the possession remained with the tenant. Once the civil Court passes

a decree on the subject matter of the proceedings, it is binding upon the Magistrate. If the civil Court had passed a decree prior to the initiation of

proceedings u/s 145 , Cr.P.C., there is no scope for the Magistrate to take action u/s 145 , Code of Criminal Procedure and decide the question

of possession.

In any event, in the impugned order the Magistrate has not declared that the tenant is entitled to be in possession thereof until evicted therefrom

in due process of law. While so, the argument of learned Counsel for the first respondent-tenant that he is entitled to protection from disturbance of

such possession until eviction by due process of law has no substance. Since the tenant has failed to secure an injunction order in the Civil Court on

the basis of his possession, the Executive Magistrate cannot ignore this factor and proceed to pass an order u/s 145, Cr.P.C.

In the result, the Criminal Revision Case is allowed and the order dated 15.3.1990 in M.C. No. 7/87 of the Executive Second Class

Magistrate, Vanur, is set aside.