Lakhmir Singh vs State of Punjab

S.C. Malte, J.

This petition arises out of dispute over the landed property. Proceedings under Section 145 Cr.P.C. were initiated on the basis of report dated 24.9.1996 submitted by the Station House Officer, Police Station Lopoke (Annexure P1). On the basis of that, the Sub Divisional Magistrate, Ajnala, District Amritsar passed an order on 24.9.1996 itself, and decided to proceed under Section 145 Cr.P.C. Thereafter, by another order dated 15.11.1996, he made overall property to the receiver under Section 146 Cr.P.C. Aggrieved by these orders, present (petition) is filed.

The land in dispute originally belonged to one Mukhtiar Singh who had shifted in Malaysia and was staying there. His daughter Amrit Kaur is staying in India. She is the wife of Gurnam Singh, who is one of the parties in the litigation under Section 145 Cr.P.C. Mukhtiar Singh is said to have executed a general power of attorney in favour of his daughter Amrit Kaur, copy of that power of attorney is Annexure P.2. A bare perusal of that general power of attorney indicates that Mukhtiar Singh has authorised his daughter Amrit Kaur to mortgage, sell, gift, lease, exchange etc. and execute any document on his behalf in respect of his land and house situated at village Kakkar, Tehsil Ajnala Distt., Amritsar. The contents of the rest of the general power of attorney are not presently in dispute here.

Mukhtiar Singh passed away in September 1993. After his death the dispute regarding the possession and ownership of that properties seems to have provoked the present litigation.

Papers before me indicate that meanwhile by an agreement dated 25.4.1990 (Annexure P3) the said Amrik Kaur, who was the general power of attorney holder of Mukhtiar Singh, sold land in dispute to one Lakhmir Singh (present petitioner). In that agreement it was mentioned that possession of the land in dispute would be delivered to Lakhmir Singh on 15.5.1993. It is contended that pursuant to that, the said Lakhmir Singh (petitioner) got the possession of the disputed property.

In this petition now the first question for consideration is as to whether the SubDivisional Magistrate was justified in initiating proceedings under Section 145 Cr.P.C. For initiating such proceedings he has placed reliance on the report submitted by the Police on 24.9.1996 (Annexure P1). In the whole of the report, the Station House Officer of Lopoke Police Station has nowhere indicated that on a particular date there was some dispute between the parties that gave rise, or was likely to give rise, to the breach of peace. In para 1 of the report he has given the details as to the rights claimed by the rival parties. Presently that aspect need not be diluted further. In concluding para 2 he has reported that the claim of Gurnam Singh was illegal. He further says that Sukhwinder Kaur wife of Shri Mukhtiar Singh wanted the possession of the land through Jagtar Singh son of one Surat Singh. The other party Gurnam Singh is said to have wrongly established their claim. After making these observations he simply requested the Magistrate to take proceedings under Section 145 Cr.P.C. On turning to the order passed under Section 145 Cr.P.C. (Annexure P6), I find that the learned Magistrate has simply referred to the aforesaid report submitted by the Police, and claims to have recorded certain statement of one Gurminder Singh Inspector, and jumped to the conclusion that he was satisfied that there was a likelihood of breach of peace. This is a strange method of passing the order. Section 145 Cr.P.C. contemplates that Executive Magistrate should be satisfied from the Police report or upon other information that a dispute likely to cause breach of peace exists on the issue of possession over the property. Here the report by the Police, referred above, nowhere shows that there was any possibility of breach of peace. Only the nature of rival contention has been indicated in that report. There does not seem to be any other material or information available with the Magistrate that would be enough to form an opinion regarding the satisfaction of possibility of breach of peace.

The learned Magistrate thereafter passed the order dated 15.11.1996, on the basis of the conclusion that as per his preliminary inquiry, he found that neither party is in actual possession over the suit property. In the order, thus, passed by him, he has not even cared to refer, which part of the inquiry and which papers or material had been considered by him to arrive at the conclusion that none of the parties is in an actual possession of the suit property. In the context of such most unsatisfactory way of dealing with the proceedings under Sections 145 and 146 Cr.P.C., I further consider certain facts now placed in this petition.

The undisputed position is that the present petitioner has filed a civil suit on 24.9.1996 against the respondents and others, and he sought the relief of specific performance of an agreement executed by general power of attorney holder Smt. Amrit Kaur (referred above). In the same suit he has sought temporary injunction during the pendency of the suit. The order Annexure P 4 passed in that suit indicates that ex parte interim injunction in favour of Lakhmir Singh (petitioner) was passed and thereafter the matter further proceeded after notice to the defendants (present respondents). The Civil Judge (Junior Division), Ajnala, ultimately directed the parties to maintain status quo regarding possession and alienation of the suit land till the disposal of the suit. It is unfortunate that the learned Judge thought it proper to pass such an order which has left the parties to struggle on the issue as to what the status quo was on the particular date.

The counsel for the respondents brought my attention to the decision in Mukhtiar Singh v. State of Punjab, 1997(3) RCR (Crl.) 14 : 1997(2) AIJ 589 . In that case a Single Bench of this Court has expressed the opinion that the order by which this Court has directed to maintain the status quo, does not conclude the dispute regarding possession. Unfortunately in this case also the Civil Court has passed the similar order of maintaining status quo and left the matter with the parties. On perusal of the order passed by him, I am totally dissatisfied with that order. The learned Judge has not even cared to frame proper points for his consideration while disposing of such application. It is a settled position that while disposing the application for interim injunction, the order should be directed towards the decision over three important points, namely, (i) a strong prima facia case; (ii) irrepairable injury that may be caused to the party; and (iii) balance of convenience. He has dealt with neither of these points properly. However, in order to ascertain what he ultimately wanted to indicate, the contents of the order is to be taken into consideration. In the concluding part of his order he has observed that he did not find force in the submissions made on behalf of defendants 3 to 8 (out of the present respondents). In other words, as such he wanted to indicate that there is probability of the plaintiff being entitled to the relief asked for.

As it clearly appears from Annexure P 2 and P 3, one Amrit Kaur, the wife of Gurnam Singh (daughter of Mukhtiar Singh), as a general power of attorney holder of Mukhtiar Singh, agreed to sell the disputed land to the petitioner Lakhmir Singh. The counsel for the respondent submitted that even prior to that the said Gurnam Singh seems to have exchanged the land of Mukhtiar Singh with the land which is stated to have been belonging to him in some other part. He brought my attention to the fact that on enquiry, it transpired that the said Gurnam Singh did not hold any property elsewhere and so the statement regarding exchange of Mukhtiar Singh''s property with the property of Gurnam Singh was totally false. Such an exchange and its denial are the different aspects with which presently the parties to this litigation would not be directly concerned in the sense that in this case the primary question could be whether Amrit Kaur as the general power of attorney holder had authority to sell the property and whether she agreed to sell it. As the position presently stands, there is enough prima facie material to show the said transaction in favour of the present petitioner.

In so far as it pertains to the question of possession over the suit property, it is material to refer to Annexure P5, which is an application submitted by respondent Sukhwinder Kaur and Jagtar Singh. In that application it was clearly admitted by her that in March 1990, the said Mukhtiar Singh gave that land on lease to one Gurnam Singh. She further admits in that application that till 27.9.1996 when application was submitted, the said Gurnam Singh and his sons were cultivating the suit land. In other words on her own showing, it is clear that she was not in possession of this suit property. Moreover now, the admitted position is that the said Sukhwinder Kaur has also filed a suit for possession on 27.9.1996 and sought possession of the property against Gurnam Singh and Amrik Kaur.

Therefore, the question in nutshell would be as to who is in possession of this suit property. Admittedly, Sukhwinder Kaur is not in possession of the property. Material before me indicates that at one point of time Gurnam Singh was inducted in the land on lease. Whether he has exchanged that land with someone or not is not presently material for the purpose of settling the issue of possession. It is also prima facie to note from the papers before me that Amrik Kaur acting as the general power of attorney for Mukhtiar Singh, agreed to sell the suit property to Lakhmir Singh; and Lakhmir Singh has already filed a civil suit for specific performance by impleading the legal heirs of Mukhtiar Singh. It is also clear from Annexure P4 that the Trial Court did not find favour with the submissions of present respondents. In other words he was inclined to hold the possession with the plaintiff/present petitioner. That is the reason why in the concluding part of his order he has observed that :

"It is prima facie evident that there is probability of plaintiff being entitled to relief asked for and court''s interference is necessary to protect plaintiff from the irrepairable injury damage that would ensure before his legal rights are established at trial and comparative hardship or mischief which is likely to occur from withholding some interim relief will greater than that would be likely to arise for granting it."

I, thus, find that the SubDivisional Magistrate erred in initiating proceedings under Sections 145 and 146 Cr.P.C. Consequently, this Crl. Misc. petition is allowed and impugned orders dated 10.10.1996 and 15.11.1996 by SubDivisional Magistrate, Ajnala, are quashed.