Km. Meenakshi Agarwal and Others vs State of Uttarakhand and Others

J.C.S. Rawat, J.—By this common judgment, both the Petitioners are being disposed of together as the facts and matters involved in both the petitions are of similar nature.

With the consent of the Learned Counsel for the parties, these petitions are being taken up together today for final disposal at the motion hearing stage without they being formally admitted for hearing. The parties have also agreed that the affidavits and the counter affidavits have already been exchanged, as such, the petitions be disposed of finally.

These petitions u/s 482 Code of Criminal Procedure have been filed for quashing the preliminary order u/s 145(1) Code of Criminal Procedure and order u/s 146(1) Code of Criminal Procedure dated 27-12-2008 passed by the Sub-Divisional Magistrate, Rudrapur, District Udham Singh Nagar in Criminal Case No. 11/9 of 2008 u/s 145(1) and 146(1) Code of Criminal Procedure and the preliminary order u/s 145(1) Code of Criminal Procedure and order u/s 146(1) Code of Criminal Procedure dated 24-12-2008 passed by the Sub-Divisional Magistrate, Rudrapur, District Udham Singh Nagar in Criminal Case No. 11/8 of 2008 u/s 145(1) and 146(1) Code of Criminal Procedure.

The brief background as emerges from the record is that a lease was granted by way of registered sale (sic) deed on 01-03-1933 of the agricultural land measuring 5193 acres situated in villages Mauzas Gadariya Bagh, Noorpur, Rajpura, Pantpura, Gangoli, Laxmi Pur, Kanman, Behrabhoj, Turkagori, Pandri (excluding Paha Canal Land) within pargana Rudrapur, Udham Singh Nagar for a period of 99 years under the Government Grants Act to Shri Prag Narain Agarwal. After the demise of Prag Narain Agarwal, the above leased property and his other property was devolved upon his legal heirs. Out of the total land of 5193 acres, some of the land was taken back by the Govt, in terms of the Lease Deed. Prag Narain Agarwal had two sons, namely Shiv Narain Agarwal and Karmendra Narain Agarwal. A family settlement took place in between the heirs of Prag Narain Agarwal and approximately 1800 acres of land were devolved in favour of Karmendra Narain Agarwal. The lease hold rights of villages Turkagauri, Behrabhoj, Kanman, Gangoli, Anandpur and Pandri were acquired by Shri Karmendra Narain Agarwal by the family settlement occurred in between the parties. Karmendra Narain Agarwal, the father of Applicants Nos. 1 to 3 settled the shares of the aforesaid piece of land about 1800 acres which came into his shares by way of inheritance from his father.

The State Government of U.P. promulgated U.P. Government Estates Thekedari Abolition Act, 1958 (hereinafter Act, 1958). The State Government exercising its powers u/s 3 of the Act, 1958 issued an order dated 30-06-1966 published in official gazette, whereby the lease of Government/State in certain villages including the villages under reference were terminated with effect from 01-07-1966. The validity of the Act, 1958 was challenged before the Hon''ble Allahabad High Court. The Hon''ble Allahabad High Court held that the provisions of the Act, 1958 are ultra vires to the constitution. See G.S. Chooramani and Others Vs. State of U.P. and Another, . Thereafter, the State Government again passed the U.P. Government Estates Thekedari Abolition (Re-enactment and Validation) Act, 1970 (hereinafter Act, 1970) and also validated the notification already issued under the earlier Act, 1958 by virtue of Section 6 of the said Act. The validity of the Act, 1970 was again challenged. The Hon''ble Apex Court also upheld the legality of this Act See Kanwar Lal and Others Vs. IInd Additional Distt. Judg, Nainital and others, . By virtue of the said notification, the villages under reference alongwith the other villages, the lease was determined by the Government with effect from 01-07-1966. The determination of the lease was again challenged by the Petitioners before the High Court.

Again a controversy arose between the Petitioners and Respondent No. 4 visa-vis State that if the Petitioners has formed a company as Prag Agro Farm Limited in terms of the lease deed as to whether the provisions of U.P. Government Estate Thekedari Abolition Act, 1970 are to be applicable. The matter was referred to the Commissioner in the arbitration proceedings and the Commissioner has recorded a finding that this land in dispute vests with the State Government as per the provision of Act. No. 28 of 1970 and ordered to record the land in dispute in the name of State Government. The said order was assailed in writ petition No. 1002 of 2005 Prag Agro Farm Limited v. State of Uttaranchal and Ors. In the aforesaid writ petition, the learned Single Judge of this Court after being satisfied passed the interim order dated 08-09-2005 that the order passed by the Commissioner shall remain in abeyance. The Petitioners also filed Writ Petition (M/S) No. 963 of 2005, Km. Meenakshi Agarwal and Ors. v. State of Uttaranchal and Ors. in which the learned Single Judge of this Court ordered that the operation of the impugned notice shall remain in abeyance.

Thereafter, the State Government also enacted U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter Act, 1960). The Government Grants Act, 1895 was also amended by the State Government and also provided that the grants made under the said Act was subject to the provision of Land Reforms Act and Ceiling Act was subject to the provision of Land Reforms Act and Ceiling Act. Notices were issued to the lessee because they were holding more than the land which they were entitled to retain under the provision of the Act, 1960. The matter is still pending before the Hon''ble Allahabad High Court by way of writ petition and there is interim order in favour of the Applicants.

The consolidation proceedings in respect to the above villages had started by the State Government in the year 1992,1993 and 1995 under the Act UP. Consolidation Act, 1960. The Consolidation Officer vide order dated 10-03-1997 decided the consolidation proceedings on the basis of the family settlement as alleged by the Applicants. The land was recorded in the name of the Applicants and Karmendra Narain Agarwal in equal shares. Thereafter, appeals before the Settlement Officer were preferred by the Respondent No. 4 Manoj Narain Agarwal and the said appeals were allowed by the Settlement Officer. The Petitioners preferred the revisions before the Deputy Director, Consolidation which were dismissed vide order dated 27-10-2008. The Deputy Director, Consolidation further held that the land in dispute had already vested in the State Government under the provision of the Act, 1970. Thereafter, the Petitioners and Respondent No. 4 preferred separate Writ Petition (M/S) No. 1941 of 2008, Km. Meenakshi Agarwal and two Ors. v. Manoj Narain Agarwal v. State of Uttarakhand and Ors. During the pendency of these writ petitions, this Court passed the order to maintain the status quo at the spot. Later on after hearing the parties, the learned Single Judge of this Court modifying the order of status quo stayed the operation of the order passed by the Deputy Director, Consolidation instead of maintaining the status quo by the parties at the spot in both the petitions Annexure 14 to the writ petition.

Karmendra Narain Agarwal, father of the Applicant Nos. 1 to 3 had executed a will in favour of the Applicants as well as in favour of Respondent No. 4. This will was challenged after the demise of Karmendra Narain Agarwal by Respondent No. 4 in the testamentary proceedings to obtain the probate filed by the Petitioners. The Hon''ble Allahabad High Court on 30-08-2006 decided the said probate suit Nos. 5/99 and 33/99 filed by the parties and probate of the will was issued by the High Court of Allahabad. In the said will Karmendra Narain Agarwal, the father of the Applicants No. 1 to 3 had stated that he was having 1/6 shares of the land of Prag Farm as well as Respondent No. 4 was also having 1/6 shares in the property after the family settlement took place between the parties.

The Applicants instituted a civil suit against Respondent No. 4 alleging therein that the Respondent No. 4 had been trying to enter into the land in question. One Madan Mohan Sharma was also impleaded as Defendant who has stated before the Court that he had purchased the land from Respondent No. 4 measuring about 4.0875 acres from the disputed land. The said application for the temporary injunction was rejected by the learned Civil Judge (S.D.). Feeling aggrieved by the said order, First Appeal No. 332 of 2008 was preferred before this Court and this Court has passed the order dated 11-08-2008 that till the next date of listing status quo as existing on date shall be maintained by the parties qua the nature and the possession of the property in question, i.e. about 4 acres. It is apparent that the Court has not passed any order regarding the rest of the property. Several reports were lodged by the parties against each other and the police ultimately for maintaining the law and order situation and finding that there is an apprehension of breach of peace in connection with the disputed property submitted two separate reports to the S.D.M. which are impugned in this case. The reports are quoted hereunder:

After going through the reports, the S.D.M. passed the orders u/s 145(1) and 146 (1) Code of Criminal Procedure in both the cases and attached the property mentioned in the notices. He also indicated that there was apprehension of breach of peace at the spot and if the land is not attached immediately untoward incidents may occur or serious offence may be committed at the spot. Both the orders were passed simultaneously. The police attached the entire property including the farm house situated in the disputed land. The said order has been challenged before me.

Section 145 and 146 of Code of Criminal Procedure reads as under:

Procedure where dispute concerning land or water is likely to cause breach of peace.-(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) ... ... ... ...

Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the right of the parties thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

(2)... ... ... ...

A bare perusal of the provision of Section 145 Code of Criminal Procedure clearly reveals that the Executive Magistrate''s jurisdiction is founded on two factors viz. that (1) there is a dispute likely to cause breach of peace (2) the dispute is concerning to any immovable property within the local jurisdiction of the Executive Magistrate. If the two above factors exist, the Executive Magistrate can pass preliminary order. The plain reading of this section makes it clear that not only the dispute over immovable property but also the said dispute is likely to cause breach of peace is sine qua non for initiating the proceedings. The Magistrate should arrive at his satisfaction about the possibility of breach of peace from the police report or other information. Once, the Magistrate is satisfied that the existence of the dispute concerning the immovable property is likely to cause the breach of peace, he may pass preliminary order under Sub-section 1 of Section 145 Code of Criminal Procedure and thereafter make inquiry as provided under the later part of the section. The Magistrate while dealing with the proceedings u/s 145 Code of Criminal Procedure is mainly concerned with the possession of the property in dispute on the date of preliminary order and dispossession, if any, within two month prior to the date of preliminary order. The Magistrate is not required to decide either title of the property u/s 145 Code of Criminal Procedure or right of possession of the same. He has to see only the possession and dispossession of the property in dispute on the date of preliminary order within two months prior to that date.

The challani report submitted by the police to the Executive Magistrate indicates that F.I.Rs, had been lodged by the parties against each other. Whereas the F.I.R. in Case Crime No. 690 and 960A of 1999 is concerned that has not been filed before the court but copy of the judgment by which the Respondent No. 4 has been convicted by the Sessions Judge u/s 324 I.P.C. has been filed. The rest of the F.I.Rs, have been filed by the Applicants against the Respondent No. 4 or his purchaser of the land as alleged in Suit No. 56 of 2008 by way of impleadment application. Perusal of the record reveals that F.I.Rs, have been lodged by both the parties against each other in connection with the disputed property and farm house. Details of the F.I.Rs, lodged by the Petitioners are given hereunder:

In Case Crime No. 690 of 1999 u/s 147/148/149/307/323/504 and 506 I.P.C. (Not filed before the court).

F.I.R. No. 146 of 2008 u/s 147/149/352 and 506 I.P.C. (This F.I.R. has been lodged by Meenakshi Agarwal on 27-06-2008 against Madan Mohan Sharma, Manoj Narain Agarwal, Manager Rajendra and 10-15 unknown persons alleging therein that Madan Mohan Sharma has entered into the disputed land alongwith other persons with the fire arms. When they entered into the Held, her workers were working in the field. They fired upon the workers due to which the workers fled away from the spot.

F.I.R. No. 260 of 2008 u/s 395 and 397 I.P.C. later on converted u/s 147/148/149/307/452/504/506 and 427 I.P.C. (This F.I.R. has been lodged on 14-12-2008 by Meenakshi Agarwal against Vijay Jindal, Ram Singh Chauhan and 15-20 other persons. It is alleged that Vijay Jindal alongwith other persons came to her house and fired upon him and her sister with the intention to kill them). Vijay Jindal also threatened them of the dire consequences.

On behalf of the Respondent No. 4 has also lodged the F.I.R. against the Petitioners in connection with the same property. Detail of the same is given hereunder:

In Case Crime No. 960A of 1999 u/s 147/148/149/307/504 and 506 I.P.C. (Not filed before the Court).

F.I.R. No. 143 of 2008 u/s 147/148/149/352/504 and 506 I.P.C. (lodged by Madan Mohan Sharma on 25-06-2008 against Km. Meenakshi, Yogesh Kumar, M.L. Sammal and 30-35 unknown people alleging therein that he has purchased four acres of land from Manoj Narain Agarwal. He has further alleged that when his workers were working in the said land, the Petitioners alongwith other persons came at the spot and hurled abuses upon them. They also threatened them to leave the field. When they objected, the Petitioners threatened them. Thereafter, they left the field.)

F.I.R. No. 262 of 2008 u/s 147/148/149/307/504 and 506 I.P.C. (lodged by Manoj Narain Agarwal on 14-12-2008 against Meenakshi, Madhvi, Manisha Agarwal, Yogesh Sisodiya, Kaloo Giri, Munna Lal and 10-15 other persons alleging therein that when the complainant visited the disputed land he found that the Petitioners were cutting the sugarcane. When the complainant asked them not to cut the sugarcane, the Petitioners started hurling abuses to him and started firing upon.)

The copies of the F.I.Rs. show that the offences are being committed within the premises of the disputed property. The challani reports extracted above clearly disclose the details of F.I.Rs. lodged by the parties. It is further also alleged that the Executive Magistrate proceeded u/s 107 and 116 Code of Criminal Procedure against workers of parties on the report of the police C.A.-1 to the counter affidavit of State and both the parties'' workers were directed to maintain peace at the spot and the workers of both the parties were directed to execute the bonds to maintain the peace at the spot under the proceedings 107/116 Code of Criminal Procedure by the S.D.M. The reports prima-facie show that there was apprehension of breach of peace in connection with the immovable property.

Learned Counsel for the Petitioners contended that merely tension at the spot cannot be held to be a apprehension of breach of peace. It is the duty of the Executive Magistrate and the police to defuse the tension prevailing at the area. Learned Advocate General and the learned Counsel for Respondent No. 4 refuted the contention. It is apparent from the perusal of the F.I.Rs. that the parties are bitterly using the force against each other and the incidents were being committed repeatedly within the premises of the disputed land. So many persons of each party have been directed to execute the bonds for maintaining peace u/s 107 and 116 Code of Criminal Procedure. Thus, it is concluded that the persons of both the parties were causing apprehension of breach of peace so they were directed to execute the bonds. Thus, the first ingredient which is sine qua non for initiating the proceedings u/s 145 Code of Criminal Procedure is fulfilled in this case. Whereas the second ingredient is concerned, the dispute exists in between the parties with regard to the immovable property. It emerges from the record that the parties are making dispute for the possession inside the premises of the property and claiming themselves to be in possession over the property in dispute. I do not find any force in the contention of the learned Counsel for the Petitioners.

Learned Counsel for the Petitioners further contended that civil suit No. 56 of 2008 for injunction is pending before Civil Judge. On appeal A.O. No. 332 of 2008, this Court passed the order to maintain the status quo at the spot at about 4 acres of land. It was further contended that the S.D.M. had no jurisdiction to initiate proceedings if any civil suit is pending before any competent court. Learned Counsel for the Petitioners further contended that the Petitioner and Respondent No. 3 had filed writ petitions (M/S) Nos. 1941 of 2008 and 1954 of 2008 in which the parties were directed to maintain the status quo which is also a civil litigation before the competent court. The learned Counsel for the Applicants further contended that the rights of the parties have already been determined in the testamentary suit No. 5 of 1999 and 33 of 1999 filed by the Respondent No. 4 and Applicants respectively wherein the title of the Petitioners has been settled over the land in dispute and probate of the will of late K.N. Agarwal, husband of Petitioner No. 4 and father of Petitioner Nos. 1 to 3 was granted in favour of Petitioner No. 4 and the rights of the parties has been decided in that probate proceeding and it being the judgment in rem; the proceedings cannot be initiated u/s 145 Code of Criminal Procedure. It is admitted to the parties that in the consolidation proceedings u/s 9A, it was held that the names of the Petitioners and K.N. Agarwal may be recorded in the revenue record. The said order was quashed in the appeal by the S.O.C. The revision was preferred against the order of the S.O.C. by the Petitioners before the D.D.C. The revision was dismissed and further it was held that the land belongs to the State Government by virtue of the Act, 1970. As such, the said order of the D.D.C. has been challenged before the writ court by both the private parties as W.P. (M/S) Nos. 1941 of 2008 and 1954 of 2008. During the course of the hearing of the writ petitions, the operation of the impugned order was stayed. The Petitioner Meenakshi Agarwal and the Respondent No. 4 Manoj Narain Agarwal has filed writ petition No. 1941 of 2008 and 1954 of 2008 (M/S) respectively before this Court for seeking the following reliefs:

i) Issue a writ, order or direction or writ in the nature of certiorari quashing the order dated 27-10-2008, passed by the Deputy Director of Consolidation/District Magistrate, Udham Singh Nagar so far as it relates to the Petitioner of this writ petition.

ii) Issue a writ, order or direction or writ in the nature of mandamus commanding the Respondents not to initiate any proceedings for taking possession of the land in question from the Petitioner in pursuance of the aforesaid order.

iii) Any other suitable writ, order or direction, which this Hon''ble Court may deem fit and proper in the circumstances of the case.

iv) A ward cost of the petition to the Petitioner.

During the course of the hearing of the above writ petitions, initially the court directed to maintain the status quo at the spot. Thereafter hearing both the parties, the order of status quo was modified and the order of the D.D.C. was stayed. In other words, it can be said that the writ court vacated the order of maintaining the status quo at the spot with regard to the possession of the property. Thus, after 15th December, 2008, there was no injunction order in favour of either party regarding possession of the land. The order of status quo is always a very vague order and it does not clearly specify as to which one of the two parties were in possession over the disputed property. Naturally, it happens on the basis of this status quo order every party would try to take the possession over the disputed property so that the vague order of status quo may come to his rescue, in this process a dispute regarding possession will definitely arise and the jurisdiction of executive Magistrate will definitely arise and he can invoke his jurisdiction u/s 145 Code of Criminal Procedure and 146 (1) Code of Criminal Procedure. But in the case in hand, the preliminary order u/s 145 Code of Criminal Procedure was passed on 27-12-2008 and 24-12-2008 respectively. Thus, it is apparent from the record that the preliminary order u/s 145 Code of Criminal Procedure was passed after the modification of the order passed by the learned Single Judge in the writ petition and the order to maintain status quo had already been modified on that date and there was no order regarding the possession of the property.

In the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, , the Hon''ble Apex Court has held as under:

Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order directing initiation of proceedings u/s 145, Code of Criminal Procedure (''Code'' for short), and attachment of the property at the instance of Respondents 2-5. Indisputably, in respect of the very property there was a suit for possession and injunction being Title Suit No. 87 of 1975 filed in the Court of Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28,1981, the said suit was dismissed. The Appellant was the Defendant in that suit. According to the Appellant close relations of Respondents 2-5 were the Plaintiffs and we gather from the counter-affidavit filed in this Court that an appeal has been carried from the decree of the Civil Judge and the same is still pending disposal before the appellate court. The assertion made in the petition for special leave to the effect that Respondents 2 to 5 are close relations has not been seriously challenged in the counter-affidavit. When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding u/s 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for Respondents 2-5 was not in a position to challenge the proposition that 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. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding u/s 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.

The matter again crop up before the Hon''ble Apex Court in the case of Prakash Chand Sachdeva Vs. The State and another, wherein it has been held:

True, a suit or remedy in civil court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal court as observed by this Court in Ram Sumer Purl Mahant v. State of U.P. ''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''. The normal rule is as stated by the Court in Purl easel. But that was a suit based on title. And that could be decided by civil court only. That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are co-owner? and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance u/s 145 Code of Criminal Procedure. Neither the High Court nor the Sub-Divisional Magistrate cared to ascertain if the Respondent had any claim to lawfully prevent the Appellant from entering into his own house. The proceedings u/s 107 are for public peace and tranquility whereas those u/s 145 relate to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings u/s 107 could not furnish foundation for dropping the proceedings u/s 145. Nor the law laid down in Puri case could result in rejecting the application filed u/s 145 of the Code of Criminal Procedure. There being no dispute of title between the Appellant and Respondent the only claim to be decided was if the Appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the Appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by the two courts below cannot be maintained.

Thereafter, the controversy again came up before the Hon''ble Apex Court in the case of Amrish Tiwari v. Lalta Prasad Dubey and Anr. (2004) 4 SCC 440. The Hon''ble Apex Court has held as under:

Reliance has been placed on the case of Jhummamal v. State of M.P. (1998) 4 SCC 452. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings u/s 145 of the Code of Criminal Procedure should be set at naught. In our view this authority does not lay down any such broard proposition. In this case the proceedings u/s 145 of the Code of Criminal Procedure had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order u/s 145 of the Code of Criminal Procedure should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings u/s 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings u/s 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.

Learned Counsel for the Applicants also relied upon the judgment of the Hon''ble Apex Court in the case of Shanti Kumar Panda Vs. Shakuntala Devi, . In this case the Appellant lodged a complaint with the police. The police filed a report before S.D.M. who passed the preliminary order u/s 145 Code of Criminal Procedure recording his satisfaction about the existence of the dispute between the Appellant and one K concerning the shop which was likely to cause breach of peace. The Respondent on becoming aware of the proceedings moved an application before the Executive Magistrate praying that he is in peaceful possession of the shop and he is interested in the subject matter of the dispute. So, he wanted to be impleaded as a party in the proceedings. But the S.D.M. without giving him any opportunity to join the proceedings, finally disposed of the proceedings holding the Appellant was in possession over the disputed shop on the date of the passing of the preliminary order as also in the two months prior thereto. The Respondent then filed a civil suit for declaration of title in which the Civil Judge held that the Respondent was in possession of the disputed property and the Respondent was in possession ever the shop. The possession of the Respondent was restored. Thereafter, appeal was preferred before the District Judge and he set aside the order of the Civil Judge. The High Court in writ petition allowed the petition and set aside the order of the District Judge and restored the order passed by the Civil Judge. The Hon''ble Apex Court while dismissing the appeal against the order of the High Court held that the Civil Judge was competent to decide the matter. It was held that the Civil Court is competent to pass the order and to put the true occupant into possession. As such, this judgment is not applicable in this case.

After appraisal of the above decisions, it is apparent that the judgment rendered by the Hon''ble Apex Court in the case of Ram Sumer Puri Mahant (Supra) is not absolute principle. It has certain exceptions as has been enumerated in above decisions. The first exception against the normal rule has been laid down by the Hon''ble Apex Court is that if title is not in dispute, this ratio of Ram Sumer Puri Mahant (Supra) cannot be applied. If the parties on their own showing are said to be co-owners and if there is no partition, one cannot be permitted to act forcibly and in unlawful manner and ask the other to act in accordance with law as has been laid down by the Apex Court in the case of Prakash Chand Aschdeva (Supra), if there is no order of protection of the possession of the parties on this date when the S.D.M. passed the preliminary orders by Court. The S.D.M. was justified in initiating the proceedings u/s 145 Code of Criminal Procedure. The learned Counsel for the parties could not demonstrate me that the parties had taken any protection order regarding the possession of the entire properly by any competent court.

Learned Counsel for the Applicant laid stress upon the testamentary suit decided by the Allahabad High Court in the year 2006. Copy of the plaint of the suit has not been filed before this Court. The said probate would stand proved to the extent as provided u/s 273 of the Indian Successions Act and 41 of the Indian Evidence Act. The proceedings have been decided by the Allahabad High Court in the year 2006. Now, after conclusion of the proceedings in probate case, the parties have no right to move any application for seeking an interim relief in those proceedings to protect the possession of the parties. As such, the proceedings u/s 145 Code of Criminal Procedure is maintainable irrespective of the fact that the probate has been granted to the Petitioners. The law did not say that in every case where any civil suit or proceedings are filed, Section 145 Code of Criminal Procedure proceedings would never lie. If the parties have an option to seek interim relief by way of temporary injunction to protect the property, there the parties should avail that remedy. The Magistrate should not proceed u/s 145 Code of Criminal Procedure.

It is not in dispute that the land was granted to the ancestors of the Petitioners and Respondent No. 4 on lease under the Government Grants Act for the period of 99 years; the Act, 1958 amended in the year 1970 determines all the leases granted under the Government Grants Act and vested in the State. The matter is pending before this Court. It is also in dispute before the Allahabad High Court whether the Petitioners and Respondent No. 4 are entitled to retain the property to the extent of ceiling area prescribed under the Act or the entire land. It is not in dispute that the Petitioner No. 4 being the wife of late K.N. Agarwal has right of inheritance over the property. The learned Counsel for the Petitioners during the course of the argument admitted that there is no dispute about the title of the property. The learned Counsel for the Petitioners further laid stress that only the Petitioners are in possession since long and the proceedings u/s 145 Code of Criminal Procedure cannot be initiated.

The learned Counsel for the Applicants further contended that the Applicants are in possession of the disputed property and the Respondent No. 4 was never in possession of the disputed property on the date of the preliminary order. The learned Counsel for the Applicants referred the electricity bills paid by them which have been filed alongwith the petition. The Applicants also filed seed farm licence, payment of sales tax for the seeds, provident fund of the employees, purchase of the trees by Wimco and the registration of tractors in support of his contention. It was also pointed out that in civil appeal No. 332 of 2008, the High Court directed to maintain the status quo with regard to the four acres of land which is alleged to have been sold out by the Respondent No. 4 to Madan Mohan Sharma who was not found in possession at the time of the visit of the Commissioners appointed by this Court. The report was referred before me. The affidavit filed by the Respondent Nos. 1 and 2 in Contempt Petition No. 218 of 2008 for violating the order of status quo of the writ court shows that the Petitioners are in possession of the disputed land. The learned Counsel for the Respondent No. 4 refuted the contention. He alleged that he is in possession of the disputed land. The first information reports mentioned in the police challani reports reveal that the incidents had occurred inside the disputed land. Learned Advocate General contended that there is a dispute about the possession of the aforesaid immovable property and both the parties were claiming possession over the land, crops & trees and making claims and counter claims against each other and were quarrelling with each other and lodging reports against each other due to which serious law and order situation had arisen and there was an apprehension of breach of peace. The parties are disturbing the peace and tranquility of the areas and if Magistrate would not have taken immediate action some untoward incidents would have occurred. The learned Advocate General further contended that only preliminary order u/s 145(1) Code of Criminal Procedure has been issued to appear before the court and to submit their claims about the possession on the date of the preliminary order. The parties are not submitting their claims before the S.D.M. Keeping in view of the emergent position, the property was attached. The preliminary order and the attachment order have been passed u/s 145(1) and 146 (1) Code of Criminal Procedure respectively which have been challenged before me. These are not the final orders passed u/s 145 Code of Criminal Procedure. It is a settled position of law in exercising its jurisdiction power u/s 482 Code of Criminal Procedure, the court would not embark upon the inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence, the matter cannot be decided at the summary stage. u/s 482 Code of Criminal Procedure the High Court need only to consider whether the allegations in the challani report or any other matter which was before the Executive Magistrate was sufficient to proceed u/s 145(1) Code of Criminal Procedure or u/s 146(1) Code of Criminal Procedure or not. Where the allegation in the said report prima-facie constitute that there is apprehension of breach of peace and the dispute is with regard to the immovable property, the High Court should not embark upon the evidence which is to be led by the parties before the trial court. The High Court should leave the matter to the trial court to give proper opportunity to the parties to adduce the evidence and to prove their claim after giving them full opportunity to adduce the evidence. Thus, it would not be proper for this Court to embark upon the said evidence and to hold which of the parties were in possession at the time of the preliminary order. As I have also indicated earlier that the court cannot go into controversy as to whether the parties have title over the property or not, The proceedings u/s 145 Code of Criminal Procedure being of summary nature is only confined to the apprehension of breach of peace and the possession of the property on the date of the preliminary order. Thus, the findings of the long-standing possession summarily cannot be recorded by this Court at this stage. The S.D.M. received the challani reports from the police. In the first information reports submitted by the parties against each other show that the incident occurred in between the parties and there is apprehension of breach of peace. There was no order by any of the courts to restrain the parties to interfere in the peaceful possession of the parties. In such a situation, the learned S.D.M. has rightly invoked his jurisdiction u/s 145 Code of Criminal Procedure. Thus, in view of the above. I do not find any force in the contention of the learned Counsel for the Applicants. I am in agreement with the submission of the learned Advocate General.

The learned Counsel for the Applicants further contended that the order did not contain the detail reasons for being satisfied to proceed u/s 145 Code of Criminal Procedure. The learned Advocate General refuted the contention and contended that the Magistrate need not record the detailed reasons. It is the satisfaction of the Magistrate. The report on the basis of which the proceedings have been initiated is also on record which discloses a number of F.I.Rs. and other material submitted by way of police report. Section 145 Code of Criminal Procedure provides that if the Magistrate is satisfied from the police report or otherwise that a depute is likely to cause breach of peace, he is ceased of jurisdiction to take action and he can invoke his jurisdiction u/s 145 Code of Criminal Procedure. Before a Magistrate can proceed u/s 145 Code of Criminal Procedure., he must state the information upon which he has reason to suppose that the apprehension of breach of peace is probable or imminent. He should satisfy from the nature of the information received by him and should state the precise fact by which he had been exercising the jurisdiction. He must be satisfied from the police report. In the instant case, the preliminary orders passed by the learned Magistrate are self explanatory which are reproduced below:

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He has stated about the nature of the dispute about the immovable property, in the preliminary order he has clearly mentioned that there is an apprehension of breach of peace at the spot. No further reason is required to be recorded in the preliminary order. The preliminary order which is extracted above clearly disclosed that there was a dispute about the possession of the immovable property in between the parties and there is apprehension of breach of peace. As such, all the ingredients enumerated u/s 145 Code of Criminal Procedure has been enumerated in the preliminary orders. As discussed above, it is apparent that a dispute regarding the possession and apprehension of breach of peace at the spot had arisen in the disputed property. The jurisdiction of the Executive Magistrate can be invoked by either of the parties or by the police. If the Magistrate, in such a situation, passes an order u/s 145(1) Code of Criminal Procedure or an order of attachment of the disputed property u/s 146(1) Code of Criminal Procedure, there does not appear to be any illegality and impropriety. If the Magistrate had received a report that there is a dispute over the land and there is likelihood of breach of peace and if the Magistrate would not have initiated the proceedings u/s 145 and 146 Code of Criminal Procedure, it would mean that the Executive Magistrate had failed to discharge his duties conferred upon him by the law. When the Executive Magistrate/S.D.M. had received the report from the police that apprehension or imminent danger of peace and tranquility in the area with regard to the possession of immovable property exists, the Magistrate can invoke the jurisdiction u/s 145 and 146 Code of Criminal Procedure. I do not find that the Magistrate had done any illegality in this regard.

So far as the order u/s 146(1) Code of Criminal Procedure is concerned, the statute empowers the Magistrate to attach the subject of the dispute if the Magistrate considered the case to be one of emergency and that order could be passed at any time after making the order under Sub-section (1) of Section 145 Code of Criminal Procedure. In the instant case the order u/s 146(1) Code of Criminal Procedure was drawn up apparently after the 145(1) Code of Criminal Procedure order although on the same day. The Magistrate was clearly of the view that there is a dispute about the possession of the disputed property & trees and harvesting of the crops standing on the field in between the parties. In case the said property was not attached immediately u/s 146 Code of Criminal Procedure, then any untoward incident would take place. He further stated that emergent situation of apprehension of breach of peace had occurred. The order of the Magistrate is self explanatory. Thus, the order passed u/s 146(1) Code of Criminal Procedure by the Executive Magistrate was legally justified. The order u/s 146(1) Code of Criminal Procedure also refers the police report. The police reports which were submitted to the S.D.M. clearly reveal that there was dispute about the possession and the parties were quarrelling with each other with regard to the possession of the disputed property and F.I.Rs. and cross F.I.Rs. had been lodged. In such a situation, the learned Magistrate was justified in proceedings u/s 145 and 146 Code of Criminal Procedure.

During the course of the argument, it was pointed out that the receiver (Tehsildar) which has been appointed by the S.D.M. has stated to the S.D.M. that due to over work, he could not discharge his function as receiver of the property. It was pointed out that two persons from the public are appointed as receivers and they have given undertaking that they would do it without honorarium. Learned Counsel for the Petitioners further submitted that the order dated 24-01-2009 for appointing two persons from the public as receivers is liable to be set aside. It is pertinent to mention here that the Petitioners have filed a separate Criminal Application No. 149 of 2009 u/s 482 Code of Criminal Procedure before this Court after conclusion of the arguments in this case for quashing the aforesaid order dated 24-01-2009 passed by the S.D.M. The matter is pending before this Court, as such no order is required in this regard in this writ petition.

In view of the above, the petitions are devoid of merit and are liable to be dismissed. The petitions are dismissed accordingly.

No order as to costs.

Let a copy of the order be placed in Criminal Application No. 5 of 2009.