Kartar Singh vs Balbir Singh Malik, Sub Divisional Magistrate and ors.

K S. Bhalla, J.

Challenge in this petition is to the orders dated 26.10.1938 (annexure P3) and 21.2.1989 (annexure P5) of Sub Divisional Magistrate Karnal, by which proceedings under section 145 of the Code of Criminal Procedure, 1973, (Code for short) were initiated and attachment under section 146 of the Code was ordered respectively.

Facts giving rise to the dispute, briefly stated are that land belonging to respondent No. 3 Punjab Wakf Board, Ambala Cantt. situated in village Sandhir, Sub Tehsil Nilokheri, district Karnal was originally given on lease to Jarnail Singh respondent No 2, in the year 198081 and had remained on lease with him till Rabi 1986 whereafter lease in his favour was not extended and instead was cancelled for nonpayment of rent. That land was subsequently given on lease to petitioner Kartar Singh vide lease deed dated 8.10.1987. According to the petitioner respondent No. 2 had deposited Rs. 33,900/ on 18.10.1987 and possession was delivered to him by respondent No 3 in the month of October, 1987. Respondent No. 2, however, claiming possession was still with him had filed a civil suit at Karnal for permanent injunction against the petitioner as well as respondent No. 3 wherein an exparte order (annexure P1) for temporary injunction was made in his favour restraining the defendants from dispossessing the plaintiff from the suit land except in due course of law.

Apprehending breach of peace with regard to dispute concerning aforesaid land, local police submitted Calendar (Annexure P2) before SubDivisional Magistrate, Karnal, on 10.10.1988, disclosing that there was dispute between Jarnail Singh and Kartar Singh. It is, however, mentioned therein that on finding opportunity, the second party Kartar Singh took possession over the land. Sub Divisional Magistrate, Karnal, passed preliminary order under section 145 (1) of the Code dated 26.10 1988 (Annexure P3) and summoned the parties to attend his Court in person or through Pleader on 17.11.1988 at 9 A.M. and to put in written statements of their respective claims with regard to the fact of actual possession of the subject of dispute. That order was assailed by the petitioner through Criminal Miscellaneous No. 8115M1988 but the same was dismissed on 18.11.1988 as premature holding that no case for exercise of inherent powers was made out at that stage. Subsequently, order dated 21.2 1989 (annexure P5) under section 146 of the Code was made by SubDivisional Magistrate, Karnal whereby the land in dispute was put under attachment and Naib Tehsildar Nilokheri was appointed Receiver of the attached property to look after and manage the same. Realising that the same was bound to provide interference into his admitted possession petitioner Kartar Singh filed the present petition under section 482 of the Code for quashing both the aforesaid impugned orders annexures P3 and P5.

In the meantime, it came to light in the undisputed civil litigation as well that petitioner Kartar Singh was in possession of the land in dispute as a result of which respondent No. 2 Jarnail Singh the plaintiff, was compelled to amend his plaint. It is not disputed on his behalf that the plaint of the civil suit for permanent injunction was amended to the effect of changing its nomenclature to a suit for mandatory injunction directing the defendants to put the plaintiff into possession or in the alternative for possession of the land in dispute, Thus, as the position now stands, undisputedly petitioner Kartar Singh is in possession of the land in dispute.

Although Section 145 of the Code deals with regard to dispute concerning land or water or the boundaries thereof, which may lead to a breach of peace but it is confined with regard to actual possession thereof. That is why respective parties are called upon under that provision of law as was done in this case through preliminary order, to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. As is obvious from the Calendar Annexure P2 at the time when the proceedings under section 145 of the Code were initiated, admittedly petitioner Kartar Singh was in possession of the land. So it could not be said that there existed any dispute with regard to possession of the land or subject of dispute. The orders under section 145 of the Code are merely police orders made to prevent breach of the peace. They decide no question of title. Even while making final order the Executive Magistrate does not purport to decide a party''s title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is an apprehension of the breach of the peace, and with that object he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction it displaces the order of the Criminal Court. It is not disputed between the parties that the orders of the Civil Courts are binding on the Criminal Courts with regard thereto. In this situation of the matter, when parties had entered into Civil litigation much before initiation of proceedings under section 145 of the Code, and also when now question of possession is pending before the said Court for determination including the question whether respondent No. 2 was forcibly and wrongly dispossessed, as claimed by him, initiation of proceedings under sections 145 and 146 of the Code seeking orders of temporary nature, are not justified. Enquiry by an Executive Magistrate under sub section (4) of section 145 of the Code when admittedly civil suit with regards to the same property concerning its possession is already pending, about which a reference is also made in order under section 146 of the Code (annexure P5), on the face of it, becomes absurd, orders made under section 145 being inherently of temporary nature undisputedly.

Parallel proceedings should not be permitted to continue as multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation, as decree of the Civil Court is always binding on the Criminal Court. It was held in Ram Sumer Puri Mahant v. State of U.P. & Ors., 1985(2) Recent Criminal Reports 43; 1985(1) Chandigarh Law Reporter 521 , by the apex Court that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, there is hardly any justification for initiating proceedings under section 145 of the Code. I am thus satisfied that parallel proceedings should not continue and the impugned order of the learned Magistrate should be quashed. With regard to breach of peace, if any, resort can always be had under section 107 of the Code.

Mr. Bali, Senior Advocate on behalf of respondent No. 2 has contended that request of the petitioner with regard to order annexure P3 having already been dismissed vide order dated November 18, 1988 of this Court, he cannot reagitate that matter. I do not find any merit. I don''t find any merit in this contention for the simple reason that the aforesaid order was passed because it was felt that inherent powers should not be exercised at that stage. In other words, request of the petitioner was declined being premature. At that time both the parties were called upon to furnish their claims with regard to actual possession of the subject in dispute and one of them had rushed to this Court before furnishing his claim and getting the same adjudicated upon. Now, however, petitioner bad submitted his claim in the form of annexure P4 before the Executive Magistrate wherein it was pointed out that question of possession was pending before a Court for decision between the parties and without taking notice of the same, order of attachment dated 212.1989 annexure P5 was passed to the effect of disturbing possession of the petitioner and making the proceedings stand still thereafter for the reason that the Civil Court was seized of the matter. In any case, fresh petition u/s. 482 of the Code, on the same facts is neither barred by principles of resjudicata Prayer made on behalf of the petitioner in Criminal Miscellaneous No 36701989 to the effect that the Executive Magistrate be directed to continue the proceedings under section 145 of the Code with the idea to collect the harvested crop cannot possibly be taken as withdrawal of his claim with regard to quashing of the two impugned orders in the main petition, as suggested by counsel for respondent No. 2.

This can neither be taken to provide a bar by way of rule of estoppel.

For the aforesaid reasons, this petition is allowed and the orders dated 26.10.1988 and 21.2.1989 Annexures P3 and P5 respectively of the learned SubDivisional Magistrate, Karnal, are quashed, leaving it open to him to take proceedings under section 107 of the Code, if so advised. The petition is disposed of in these terms.