Kulbir Singh vs State of Punjab

K.S. Kumaran, J.

S.H.O., Police Station, Shambhu presented a Kalendra before the Sub Divisional Magistrate, Rajpura arraigning the petitioners as the firstparty and respondents 2 to 5 as the secondparty wherein he stated that the parties have land of an extent of 24 bighas and 16 biswas (in the khasra numbers mentioned in the Kalendra hereinafter referred to as the land in dispute) in Village Dogawan. He has also stated that the land in dispute is jointly owned by both the parties, and that dispute with regard to the partition is pending in Court. He further stated that both the parties assert their title over this land in dispute and that suit is pending in the Court of Additional Civil Judge (Senior Division), Rajpura. According to the S.H.O., a dispute with regard to the partition of this land can arise at any time resulting in loss of life and property, that no decision with regard to the partition has yet been given by the Court, and that some serious offence can be committed. Therefore, he prayed that till the Court gives a decision with regard to the partition of the land, the proceedings under Section 145 Cr.P.C. be taken so that peace is not disturbed and no serious offence is committed. He also prayed for appointment of a Receiver to take possession of the land in dispute.

On the basis of this Kalendra, the Sub Divisional Magistrate, Rajpura observed in the preliminary order on 24.6.1996 that on the basis of the report and the statement made by the S.H.O. that there is dispute regarding the possession of the land in dispute and that there is apprehension of breach of peace regarding the possession of the same, he was satisfied that there is a dispute regarding the possession of the land in dispute which is likely to cause breach of peace. He, therefore, ordered the parties to appear on 15.7.1996 and put in their claim and the evidence.

The petitioners, who are the firstparty in the above said proceedings under Section 145 Cr.P.C., have approached this Court with this petition under Section 482 Cr.P.C. for quashing the Kalendra dated 20.6.1996 (annexure P1), the order dated 24.6.1996 passed by the learned Sub Divisional Magistrate, Rajpura (annexure P2), and the proceedings under Section 145 Cr.P.C. pending before him. According to the petitioners, they are coowners in joint possession along with respondents 2 to 5 of the land in dispute, and that the land has not so far been partitioned. The petitioners also claim that they are in actual physical possession, but the respondents 2 to 5 though are coowners, are not in actual physical possession, but tried to alienate the specific Khasra numbers and also land in excess of their shares. The petitioners claim that they have filed a suit for permanent injunction for restraining respondents 2 to 5 from alienating/transferring or (sic). They also claim to have filed a petition under JUDGMENT 39 Rules 1 and 2 C.P.C. for restraining the respondents from doing so during the pendency of the suit, and the Court has also granted the temporary injunction as prayed for on 4.6.1996. According to the petitioners, the said order of the learned Sub Judge is still in force, but the respondents 2 to 5, with the intent to overreach the above said orders, have managed with the police of Police Station, Shambhu to submit a report under Section 145 Cr.P.C. to the Sub Divisional Magistrate, Rajpura. The petitioners claim that the Sub Divisional Magistrate, completely overlooking the specific allegation that the parties are coowners and that the dispute is pending before the Civil Court, has passed the preliminary order, which is not sustainable. The petitioners also claim that there is no allegation that there is any dispute regarding the possession of the land, whereas there is mention of a dispute with regard to the partition of the land. The petitioners further claim that the initiation of the proceedings under Section 145 Cr.P.C. is an abuse of process of law.

Respondents 2 to 5 filed a reply admitting that they themselves and the petitioners are the coowners of the land in dispute and also that a suit for permanent injunction is pending. The allegation in the petition regarding the grant of temporary injunction as alleged by the petitioners has also been admitted by the respondents 2 to 5. But the respondents allege that they are in physical possession of land according to their share, and they deny that they attempted to alienate the land in excess of their share. According to these respondents, the petitioners tried forcibly to take possession of the land from them and they being ladies with no male member in the house, a report under Section 145 Cr.P.C. was submitted. But the respondents have also stated that the petitioners are also in possession of the land according to their shares.

The firstrespondentState did not file any reply.

I have heard the counsel for both the sides. I have already extra the relevant and material facts and allegations and, therefore, it is not necessary to repeat them once again. As admitted by the contesting respondents, the petitioners as well as the respondents are coowners and they are in possession of the lands in dispute according to their shares. These respondents have also admitted that the petitioners have filed a suit for restraining them from alienating or transferring the lands in specified khasra numbers or in excess of their share. The fact that a temporary injunction has been granted by the Civil Court, accordingly, is also not disputed by the private respondents. The respondents only say that the petitioners tried to forcibly take possession of the land in their possession and, therefore, the proceedings under Section 145 Cr.P.C. were initiated. As rightly contented by the learned counsel for the petitioners, when admittedly, the parties are the coowners and when the petitioners are also in possession of the land, and when in the civil suit filed by the petitioners, temporary injunction has been granted restraining the respondents from alienating the specific khasra numbers or in excess of their share, the proceedings under Section 145 of Cr.P.C. are not competent. In such circumstances, the learned Sub Divisional Magistrate should have left it to the parties to have a final decision from the civil court where the dispute is pending. In the circumstances of this case, the Sub Divisional Magistrate ought not to have initiated the proceedings under Section 145 Cr.P.C. Therefore, this petition has to be allowed.

Accordingly, the petition is allowed quashing the Kalendraannexure P1, the order of the S.D.M., Rajpuraannexure P2 and the proceedings under Section 145, Cr.P.C. in question.