Laxmi Kant Dubey vs Jamuni & Ors.

Bhagwan Din, J.—This criminal revision has been directed against the order dated 1981999 passed by the IHrd Addl. Sessions Judge, Allahabad in criminal revision No. 506 of 1999 (Smt. Jamuni and others v. Laxmi Kant and another), allowing the revision and setting aside the order dated 2941999 made by the Executive Magistrate under Section 146(1),Cr.P.C.

With the consent of the parties counsel, the revision is heard and disposed of finally at the admission stage.

The briefly stated facts giving rise to the present revision are that one Smt. Gangai who was the real sister of Jamuni the opposite party No. 1, executed a saledeed on 151971 transferring the land in dispute in favour of Smt. Jamuni. On the application of Smt. Jamuni, the revenue records were corrected and her name was entered as Bhumidhar in place of Smt. Gangai Devi. The present revisionist, Laxmi Kant Dubey and Onkar Nath Dubey are the sons of Smt. Gangai. They filed a suit No. 126 of 1999 on 2711999 for cancellation of the saledeed executed about 29 years ago. Later on, on 1531999 they moved an application under Section 145, Cr. P.C. supported by an affidavit before the Executive Magistrate, Meja, Allahabad. On being satisfied that there exists a dispute between the parties, likely to cause breach of peace concerning the agricultural land, the Executive Magistrate made a preliminary order under Section 145 (1), Cr. P.C. On the same day he also made and order of attachment under Section 146 (1), Cr. P.C. directing the S.O. concerned to give the land in dispute in Supurdagi of some respectable person.

Against the order of attachment made under Section 146 (1), Cr. P.C., Smt. Jamuni, the present opposite party No. 1 filed a criminal revision, which ultimately came up for disposal before the IIrd Addl. Sessions Judge. The revisional Court allowed the revision on the ground that a civil suit has already been filed and is pending between the parties, in respect with the property which is the subject matter in the proceedings under Section 145, Cr. P.C., the proceedings under Section 145, Cr. P.C. are, therefore, without jurisdiction. The revisional Court quashed the proceedings under Section 145, Cr. P.C. and also set aside the order made under Section 146 (1), Cr. P.C. directing the delivery of possession to the revisionist, Smt. Jamuni in view of the report submitted by the police of the police station concerned. Hence, the revision by the present revisionists.

Sri Vijay Kant Dwivedi, learned counsel appearing for the revisionists contends that the civil suit between the same parties in respect of the same subject matter, pending in the civil Court, is not a bar to the proceedings under Section 145, Cr. P.C. A reference to the ratio laid down by the Hon''ble Supreme Court in Prakash Chand Sachdeva v. The State and another, AIR 1994 SC 1436, has been made wherein it is held that when the claim or title are not in dispute and the parties on their own showing are coowners and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other party 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 under Section 145, Cr. P.C. The Learned counsel also relied on the decision of this Court in Janjir Singh and others v. State of Uttar Pradesh and others, 1997 (35) ACC 150. The ratio laid down by this Court in this case does not apply to the set of facts and circumstances of the present case.

On the other hand, Sri B.N. Mishra, learned counsel appearing for the contesting opposite party No. 1 relied on the decision in the case of Shashi Kant v. The XII Addl. District Judge, Meerut and others. 1994 (31) ACC 656 and the observations of the Hon''ble Supreme Court in Ram Sumer Puri Mahant v. State of U.P., 1985 (22) ACC 45 (SC) and urged that there was no justification to make an order of attachment.

In the instant case admittedly a suit for cancellation of saledeed is pending in the civil Court. The question of title is in dispute between the parties. The revisionists claimed to be owner of the land in question on the basis of inheritance from their mother Smt. Gangai, whereas the opposite party No. 1 Smt. Jamuni claims to be the Bhumidhar of the land on the basis of a sale deed executed by Smt. Gangai during her life time. Therefore, the ratio laid down by the Hon''ble Supreme Court in P.C. Sahdeva''s case (supra) is not attracted to the facts of this case. The obsrvations of the Hon''ble Supreme Court in Ram Sumer Puri Mahant''s case (supra) and ShashiKant''s case (supra) are applicable to the present case.

In Ram Sumer Puri Mahant''s case (supra), the Hon''ble Supreme Court has held that when a civil litigation is pending for the same property wherein the question of possession is involved and the parties are in position to approach the civil Court for interim order, such as, injunction or appointment of receiver adequate protection of the property during pendency of the dispute, there is no justification for initiating a parallel criminal proceedings under Section 145, Cr. P.C. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. Therefore, the parallel proceedings should not continue and the order of the Magistrate directing initiation of the proceedings under Section 145, Cr. P.C. must be quashed.

Following the above ratio, this Court has in Shashi Kant''s case (supra) held that the revisional Court has committed no error in holding that as the suit is pending between the parties, they can get appropriate order with regard to the possession and preservation of the property from the same Court, where the dispute is pending. It has not been found proper to continue the proceedings under Section 145, Cr. P.C.

It is urged by the counsel for the revisionists that after the death of Smt. Gangai, the revisionists inherited the land in question and are in peaceful possession thereon. When the revisionists filed a suit on 1531999 for cancellation of the sale deed, Smt. Jamuni and her men did not relish it hence they tried to harvest the crop standing on the land in dispute and thus arose an apprehension of breach of peace. In these circumstances, the proceedings under Section 145, Cr. P.C. has been initiated.

I am unable to accept this proposition. After filing the suit, even if it is taken for granted that opposite party No. 1 tried to forcibly dispossess the revisionists and harvest the crop standing on the land in dispute, an application for interim injunction restraining her from harvesting the crop could have been filed before civil Court where the suit is pending and an interim injunction could have been obtained. The proceedings under Section 145, Cr. P.C. is not the proper course as has been laid down by the Hon''ble Supreme Court in Ram Sumer Puri Mahant''s case (supra).

The next contention of the learned counsel appearing for the revisionists is that the order passed under Section 146 (1), Cr. P.C. was and interlocutory order and the revision against such order is not maintainable as Section 397 (2) prohibits revision against an interlocutory order.

Of course revision is not maintainable against an interlocutory order but the word "interlocutory order" has to be construed and interpreted in the light of the facts and circumstances of each case, like the present one, where civil suit is pending, the Executive Magistrate has no jurisdiction to draw the proceedings under Section 145, Cr. P.C. The order as such passed by the Executive Magistrate under Section 146 (1), Cr. P.C. is not proper, correct and legal and the revisional Court in exercise of inherent jurisdiction has power to interfere with an incorrect and illegal order. In my opinion, the revisional Court has, therefore, rightly interfered with for correcting the jurisdictional error and preventing the abuse of the process of the Court.

For the reasons given above, the revision is without merit.

It is noteworthy that the revisional Court has directed that delivery of possession be given to opposite party No. 1. To my mind, the revisional Court is empowered to quash the proceedings under Section 145, Cr. P.C. set aside the order made under Section 146 (1), Cr. P.C. It has, however, no jurisdiction to withdraw the possession from the Supurdar and hand over possession to either of the parties. That part of the order in the revision is, therefore, quashed. The record shall be sent to the Magistrate for making appropriate order in view of the fact that the proceedings under Section 145, Cr. P.C. and the order passed under Section 146 (1), Cr. P.C. have been quashed and possession be restored to the party from whose possession the property was attached and given in Supurdagi.

16 With the above Observation, the revision is finally disposed of.

Revision disposed of.