Lakhmir Singh and another vs State of Punjab and another

Nirmaljit Kaur, J.—This is a petition u/s 482 Code of Criminal Procedure. for quashing the order dated 30.08.2010 (P4) passed by the Sub Divisional Magistrate, Rajpura and order dated 27.11.2010 (P5) passed by the learned Additional Sessions Judge, Patiala.

The Petitioners filed a suit for permanent injunction, restraining Respondent No. 2, his brothers Mehar Singh, Malkiat Singh and Randhir Singh and their father Harnek Singh from causing any interference in the peaceful possession of the Petitioners in the disputed land and along with this suit also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of temporary injunction and the learned Civil Judge (SD) Rajpura, vide his order dated 02.03.2007 ordered the parties to maintain status quo regarding possession. Thereafter, at the instance of Respondent No. 2, proceeding u/s 145 Code of Criminal Procedure was initiated but learned SDM, Rajpura, vide order dated 06.11.2007, ordered the proceedings to be filed on the ground that the case regarding possession is pending in the Civil Court and no proceedings can be initiated u/s 145 Code of Criminal Procedure. Again Calendra u/s 145 Code of Criminal Procedure was filed on 04.04.2008 which was transferred to the Court of SDM, Nabha, who also ordered the Calendra to be filed vide order dated 11.09.2008 (P3). Then, on 09.04.2009, proceedings u/s 145 Code of Criminal Procedure were initiated, in which, Shri Vivek Narmohi was appointed as Receiver. After the evidence was recorded by the parties, SDM, Rajpura, vide his order dated 30.08.2010 ordered the withdrawal of the order and directed the Naib Tehsildar to deliver the possession of the land to Respondent No. 2 Bhupinder Singh/Thereafter, the Petitioners filed revision against the order dated 30.08.2010 passed by the SDM, Rajpura but the Additional Sessions Judge, Patiala dismissed the revision petition, vide order dated 27.11.2010 (P5).

Aggrieved, the Petitioners have filed the present petition u/s 482 Code of Criminal Procedure for quashing of the order dated 30.08.2010 (P4) passed by the Sub Divisional Magistrate, Rajpura and the order dated 27.11.2010 (P5) passed by the Additional Sessions Judge, Patiala, vide which, the aforesaid order dated 30.08.2010 (P4) was upheld.

While issuing notice of motion, the contention of the Learned Counsel for the Petitioners noted was that the Additional Sessions Judge, Patiala has dismissed the revision on the ground that the Assistant Collector Grade II had ordered the correction of khasra girdawaries vide order dated 23.12.2008, whereas, the said order has already been stayed by the Assistant Collector Grade I Patiala. Thus, the Additional Sessions Judge had dismissed the revision petition by noticing incorrect facts and accordingly, the operation of the order dated 30.08.2010 passed by the Sub Divisional Magistrate (P4) was stayed by this Court vide order dated 28.01.2011.

Respondent No. 2, herein, filed Criminal Misc. No. 1663 of 2011 in the present petition, praying for vacation of the stay order on the ground that the impugned order has already been complied with and the possession in view of the same has been delivered to Respondent No. 2 and also raised the contention that the Petitioners have till date not placed on record the alleged copy of the order dated 27.01.2009 passed by the Assistant Collector Grade I, Rajpura staying the order of the Assistant Collector Grade II, Patiala dated 23.12.2008. Further, no such order was brought to the notice of the Additional Sessions Judge, Patiala in the revision. As such, this Court had been totally misled by the Petitioners.

The Sub Divisional Magistrate, Rajpura appeared and filed his reply along with Annexure R1/A and R1/B. R1/A is an application against the order dated 23.12.2008 passed by the Assistant Collector Grade II, Patiala as well as the noting dated 27.01.2009 appended on the same application, wherein, the said order of the Assistant Collector Grade II has been stayed.

Deputy Superintendent of Police, Rajpura too has filed his reply.

No doubt, the arguments of the Learned Counsel for Respondent No. 2 do raise a volley of questions and suspicious circumstances surrounding the order dated 27.01.2009 passed by the Assistant Collector Grade I, Rajpura, staying the operation of the order dated 23.12.2008 passed by the Assistant Collector Grade II, Patiala, inasmuch as, the Additional Sessions Judge, Patiala while dismissing the revision vide order dated 27.11.2010 had observed as under:

...But in this regard, I am of the opinion that when they have been acquitted from that criminal case on 27.01.2009, but after that they have not taken any step to challenge this order dated 23.12.2008 to correct the khasra girdawaries in their name.

...Since, no entry in the khasra girdawari regarding their possession over the suit property has been made and so far this order of Smt. Vi-nay Sharma, A.C. IInd Grade, Patiala dated 23.12.2008 has not been set aside, as such, in view of this order, the learned SDM, Rajpura, vide order dated 30.08.2010 has rightly held Bhupinder Singh Respondent No. 2 to be in possession of the suit property.

Learned Counsel for the Petitioners does not dispute the fact that no stay order dated 27.01.2009 passed by the Assistant Collector Grade I, Rajpura setting aside the order dated 23.12.2008 passed by Mrs. Viney Sharma, Assistant Collector Grade II, Patiala, was ever brought to the notice of the Additional Sessions Judge, Patiala and also admits that the same was not even mentioned in the grounds of appeal filed before the Additional Sessions Judge, Patiala. The order dated 27.01.2009 passed by the Assistant Collector 1st Grade, Rajpura and copy of the grounds of appeal have been placed oh record as R1/A and R2/B, respectively, for the first time, before this Court. The same shows that the said order was passed on 27.01.2009, whereas, the appeal was entered on 06.02.2009.

Sub Divisional Magistrate, Rajpura appeared and filed his reply explaining the discrepancies.

11-12. In view of the above, it would be very much within the jurisdiction of this Court to set aside the order dated 27.11.2010 (P5) passed by the Additional Sessions Judge, Patiala and to remand back the matter to it to pass afresh order after considering the above facts with a further direction to hold enquiry and record a finding on the authenticity of the order dated 27.01.2009 passed by the Assistant Collector Grade I, Rapura or otherwise. However, the necessity to do so is no more required as at this stage, the Learned Counsels for the parties are agreed with the legal proposition of law that the proceedings u/s 145/146 Code of Criminal Procedure are not maintainable in view of the fact that a civil suit is pending between the parties qua the same dispute.

Therefore, without going into the said controversy, the issue now left before this Court is as to whether the proceedings u/s 145/146 Code of Criminal Procedure deserves to be quashed or not in view of the civil suit pending qua the same issue.

Interestingly, both the parties are aggrieved against the initiation of proceedings u/s 145 Code of Criminal Procedure. The Petitioners have prayed for quashing of the order dated 30.08.2010 (P4) passed by the Sub Divisional Magistrate, Rajpura u/s 145/146 Code of Criminal Procedure. Respondent No. 2 too has in his reply submitted that it was not the Petitioners who were aggrieved against the proceedings u/s 145/146 Code of Criminal Procedure, rather Respondent No. 2 is aggrieved against the initiation of proceedings u/s 145/146 Code of Criminal Procedure. Moreover, it is not disputed that a civil suit regarding the property in dispute is pending before the Civil Court and the Civil Court has passed the order of ''status quo'' with respect to the possession over the suit property.

As per the ratio of the judgment rendered by this Court in the case of Des Raj and Ors. v. State of Punjab and Ors. reported as 2010(4) RCR (CRI) 577, in similar circumstances, the proceedings under Sections 145 and 146 Code of Criminal Procedure were quashed, where the civil Court had already seized of the matter and status quo had been passed. Para 9 of aforesaid judgment is reproduced hereunder:

This Court in the case of Karam Singh v. Sub Divisional Magistrate, Zira, reported as 2001(2) RCR (CRI) 617, quashed the proceedings u/s 145 and 146 Code of Criminal Procedure. where the civil Court was already seized of the dispute between the parties qua the possession etc. and the order of status quo had been passed and while relying on other similar judgments held, as under.:

In Labh Singh and another y. Jaswinder Kaur and Ors. 1992(1) CLR 24, it has been held by this Court that where the land in dispute was jointly owned by the parties, the initiation of proceedings u/s 145 Code of Criminal Procedure., the order of attachment of the land u/s 146 Code of Criminal Procedure. was liable to be quashed. In the reported case, the order of status quo was also vacated by the civil Court on the ground that the parties being joint co-sharers in the land in dispute, the possession of one co-Sharer shall be deemed to be that of all the co-sharers. In Babu Singh v. Moti Ram and Ors. 1991(1) R.C.R.(Criminal) 144: 1992(1) CLR 48, the civil Court Was already seized of the matter and had granted interim stay in favour of Babu Ram, Plaintiff, restraining the other wise from interfering in the possession of the disputed land. Under those circumstances, it was held by this Court that proceedings u/s 145 Code of Criminal Procedure. were not maintainable. Accordingly, proceedings u/s 145 Code of Criminal Procedure. were quashed by this Court. In Balbir Singh and Ors. v. state of Punjab and Ors. 1999(4) R.C.R.(Criminal) 51: 1999(1) CLR 224, the dispute was between the partners of a partnership firm. It was under those circumstances that it was held by this Court that since all the partners were said to be in possession of the partnership property, it could not be possible be proceed u/s 145 Code of Criminal Procedure Resultantly, the proceedings u/s 145 Code of Criminal Procedure. and the order of attachment u/s 146 Code of Criminal Procedure. were quashed by this Court.

In the present case, as referred to above, the parties are co- sharers. The civil Court is already seized of the dispute between the parties, regarding the possession etc. the order of the status quo has already been passed. Taking all these facts into consideration, in my opinion, the initiation of proceedings u/s 145 Code of Criminal Procedure. or the order of appointment of Receiver, u/s 146 Code of Criminal Procedure. would amount to abuse of the process of Court. Resultantly, the present petition is allowed. The proceedings u/s 145 Code of Criminal Procedure. and the order of appointing Receiver u/s 146 Code of Criminal Procedure. are hereby quashed.

Further, Hon''ble the Supreme Court in the case of Ranbir Singh v. Dalbir Singh, reported as 2002(2) R.C.R. (Criminal) 275:2002(2) cri cc187 held:

However, the High Court was in error in dealing with the Revision Petition as if it was exercising appellate jurisdiction. The High Court has dealt with the developments in the case relating to the acquisition of title, the allegations of fraudulent transfers made by Karnail Singh and M/s. Homestead and the circumstances in which the suit was dismissed as withdrawn. Keeping in view the limited scope of the proceeding u/s 145, Code of Criminal Procedure. these questions were not material for determination of the main issues in the case. The Court, while dealing with a proceeding u/s 145 Code of Criminal Procedure, is mainly concerned with possession of the property in dispute on'' the date of the preliminary order and dispossession, if any, within two months prior to that date; the Court is not required to decide either title to the property or right of possession of the same. The question for determination before the High Court in the present case was one relating to the validity or otherwise of the preliminary order passed by the learned Sub-Divisional Magistrate u/s 145(1) Code of Criminal Procedure. and sustainability of the order of attachment passed u/s 146(1) Code of Criminal Procedure. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the Appellant an order of interim injunction has been passed and an objection petition has been filed by Respondent No. 1. The suits and the interim order are pending further consideration before the civil court.

In view of the above admitted facts that a civil suit is pending between the parties and status quo has already been granted coupled with the fact that both the Learned Counsel for the parties have not disputed the legal proposition of law as above, both the order dated 30.08.2010 (P4) passed by the Sub Divisional Magistrate, Rajpura and order dated 27.11.2010 (P5) passed by the learned Additional Sessions Judge, Patiala are hereby quashed being abuse of the process of Court. Accordingly, the possession of the land in dispute will revert back to the position prior to the initiation of the proceeding and the Receiver will hand over the possession, if not already handed over to the party from who he took the possession.

Disposed of accordingly.