Karnail Singh and orthers vs Sub Divisional Magistrate and others

Harmohinder Kaur Sandhu, J.

Karnail Singh and others have filed this petition under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as Code) for quashing the order dated July 3, 1992 Annexure P1 passed by Sub Divisional Magistrate, Bhatinda and the entire proceedings initiated under Sections 145 and 146 of the Code. The material facts are as follows :

Karnail Singh and Bakhtaur Singh petitioners, Kirpal Singh father of petitioner No. 3 and 4, Hari Singh and Sher Singh were brothers and were joint powers, in equal share of land measuring 196 Kanals 12 Marlas situated in village Mehma Sirja, Tehsil and District Bhatinda, Sher Singh, who was unmarred, executed a will regarding his 1/2th share of the land measuring 39 Kanals 10 Marlas in favour of Nihal Kaur. After the death of Nihal Kaur respondents No. 3 to 6 claimed themselves to be her legal heirs and they filed a suit for joint possession of land measuring 196 Kanals 15 Marlas and for permanent injunction restraining the defendants in that suit from forcibly dispossessing them of the land in question. The civil suit was dismissed by Additional Senior Sub Judge, Bhatinda on 20.10.1983. An appeal was preferred against that judgment and decree which was also dismissed by the learned Additional District Judge, Bhatinda as per judgment dated 11.10.1984. Respondents No. 3 to 6 then preferred a Regular Second Appeal which was admitted and in which the parties were directed to maintain status quo regarding possession until further orders. The petitioners alleged that they were legal heirs of Sher Singh deceased and mutation of his share of the land was already sanctioned in their favour. They were the owners in possession of the land in dispute. But, at the instance of respondents No. 3 to 6 Station House Officer, Police Station, Nahianwala forwarded a Celender under Section 145 of the Code with a request to attach the land in question to avoid breach of peace and occurrence of some serious nature. The Sub Divisional Magistrate after hearing the counsel for the parties ordered attachment of the land in question and appointed Tehsildar Bhatinda as receiver in the case. The petitioners have challenged this order of the Sub Divisional Magistrate on the ground that litigation regarding subject matter of dispute was already pending between the parties in the High Court by way of R.S.A. No. 2876 of 94 in which order of status quo regarding possession was passed on 14.11.1984 so the passing of the impugned order was unwarranted. They were cosharers in the property in dispute and proceedings under Sections 145 and 146 of the Code were uncalled for. There was no apprehension of breach of peace as both the parties had been proceeded against under Section 107/151 of the Code. There was no threat to peace and initiation of impugned proceedings was not proper.

The petition was resisted by the private respondents and they filed a written statement.

I have heard the learned counsel for the parties.

It was argued on behalf of the petitioners that litigation regarding subject matter of dispute i.e. landed property owned by Sher Singh deceased in Mehma Sarja was already pending in this Court. The matter was raised in a civil suit before a Court of competent jurisdiction and the trial Court dismissed the suit of the respondents. The learned lower Appellate Court also decided the matter regarding ownership and possession of the land in dispute in favour of the petitioners, so initiation of proceedings under Section 145, 146 of the Code amounted to an abuse of the process of the Court. No interference by a criminal process was warranted when order of status quo regarding possession was already passed by this Court. The learned counsel Failed on the case of Ram Sumer Puri Mahant v. State of U.P. and others, 1985(1) Recent Criminal Reports 278 : A.I.R. 1985 Supreme Court 472 , wherein it was observed :

"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 proceedings under Section 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."

I find that the facts of the case referred to above are strictly comparable with the facts of the present case. Question of possession of the land in dispute is to be examined in a Regular Second Appeal pending in this Court. In the meantime the parties have been directed to maintain status quo regarding possession. So the Magistrate cannot lawfully dispossess the person in possession and appoint a receiver. No untoward incident had occurred and proceedings under Sections 107/151 Cr.P.C. have been already initiated against the parties so that none of the parties take law in its own hands and cause any threat to peace. Once action under Sections 107/151 Cr.P.C. is taken by the police there remains no need for proceedings under Section 145/146 Cr.P.C. In these circumstances the impugned order is liable to be quashed.

For the fore going reasons the petition is allowed and the order Annexure P1 dated 31.7.1991 passed by respondent No. 1 vide which proceedings under Section 145 of the Code were initiated and the property in dispute was attached, is hereby quashed.