Malkiat Singh vs State of Punjab and another

V.S. Aggarwal, J.

Malkiat Singh petitioner seeks quashing of the initiation of proceedings under Section 145 Cr.P.C. and the subsequent proceedings before the Sub Divisional Magistrate, Kapurthala alleging the same to be abuse of the process of the court.

The relevant facts alleged are that the land in dispute measures 67 kanals 9 Marlas. It forms part of Khasra Nos. 3009, 3013 and 3015. The land was in possession of one Gian Nath though the Punjab Wakf Board was the owner of the same. After the death of Gian Nath, petitioner came in possession of the land. One Puran Nath took Rs. One lac for not interfering in the possession of the petitioner. The petitioner even paid the requisite lease money to Punjab Wokf Board. Thereafter the petitioner installed a tubewell, constructed a kotha and built a residential house. He got a domestic electric connection in his name. Since the land was valuable, certain persons like Municipal Councillors tried to interfere in possession of the petitioner. Petitioner filed a suit for permanent injunction against the one Thakur Dass to protect his possession. Temporary injunction was granted. Eventually the suit was decreed. Said Thakur Dass being an influential persons prompted respondent No. 2 to file an application to the police authorities so that proceedings under Section 145 Cr.P.C. could be initiated.

On the said application, the police authorities presented a kalandra to the Deputy Commissioner, Kapurthala. In the report submitted by the police, it was mentioned that petitioner was in possession and that Thakur Dass alongwith respondent No. 2 was trying to take possession of the land. The factum of civil litigation between the parties was also mentioned. The Sub Divisional Magistrate on basis of the said report initiated proceedings under section 145 Cr.P.C. The petitioner on receipt of the notice, filed a suit for permanent injunction. Adinterim injunction was granted to the petitioner which was subsequently extended.

It is contended that inspite of the pendency of the civil litigation, the SubDivisional Magistrate illegally appointed a regular Receiver after attaching the property. The initiation of the proceedings and appointment of the Receiver by the SubDivisional Magistrate is challenged to be illegal a asserting that the petitioner was admittedly in possession. In these circumstances, the proceedings could not be initiated nor there was any question of appointment of Receiver. In any case when the matter is before the civil court, there was no occasion for initiation of such proceedings.

The petition has been opposed. Respondent No. 2 in his reply denies that he received Rs. One lac from the petitioner or admitted possession of the petitioner. The contention of respondent No. 2 is that he is the Chela of Baba Gian Nath. After the death of Baba Gian Nath, Baba Puran Nath took over the Gaddi. Baba Gian Nath even had executed a will whereby Baba Puran Nath was appointed as successor. Baba Gian Nath was running a Balmiki Mandir. The main branch of the Mandir is situated at Ram Tirath, Amritsar. Respondent No. 2 is managing the mandir. Khasra Girdawari is in the name of Baba Gian Nath Chela Baba Munshi Ram. The petitioner was a Sevadar in the Mandir. In connivance with the revenue officials, he got the entry changed in his name without any notice to respondent No. 2. There has been dispute between both the parties and there was apprehension of breach of peace. It was denied that petitioner had installed a tubewell, constructed a kotha, built a residential house or got an domestic electric connection.

During the course of arguments, the main dispute agitated was that petitioner was in possession of the land, therefore, question of initiation of proceedings under Section 145 Cr.P.C. would not arise. Reliance in this regard is being placed on the report submitted by officerincharge, police station city Kapurthala. The relevant extract of the same reads :

"That on the Western side of Mohalla Mehtabgarh Kapurthala Punjab there is a Balmiki Mandir, Gian Ashram in Khasra Nos. 3013, 3009, 3015 where land of Mandir is. But this land belongs to Punjab Government, where Gian Nath resident Ram Tirth P.O. Rajasansi Tehsil Amritsar has been in possession for 43 years, that he died in 1987. But Gian Nath Babaji made a will dated 18.6.81 in favour of Puran Nath before his death. But this land is in possession of above mentioned Malkiat Singh who goes to cut the eucalyptus trees, etc. and claim the said land, by showing crop. That regarding the land Malkiat Singh has filed Civil suit in the court of Shri G.K. Rai, Sub Judge, Kapurthala which is pending and the next date of hearing is 21.8.95. Malkiat Singh is in possession of the land, and has made his house there, tubewell is also there, and the crop has been sown by Malkiat Singh. Thakar Dass M.C. Bhajan son of Sarbans son of Mohan Singh and others and Puran Nath and Karam Chand son of Shankar Dass r/o Talwanti want to forcibly take possession of the land. It is apprehended that a fight might take place, though the matter is pending in court, therefore, the proceedings are prepared and sent under section 145 Cr.P.C."

It is apparent from aforesaid that even the police reported that the land is in possession of the petitioner. Once the petitioner is admittedly in possession, in that event initiation of proceedings under Section 145 Cr.P.C. would not be justified. Such proceedings, keeping in view the report, should be dropped. If there was any apprehension of breach of peace, the Sub Divisional Magistrate could press into service provisions of Sections 107 and 151 of the Code of Criminal Procedure to prevent breach of peace. To the same effect is the decision of this court in the case of Madan Lal and others v. Krishan lal and others, 1987(1) RCR 288.

There was earlier an litigation and the petitioner succeeded therein. He also filed a civil suit against Thakur Dass and the said civil suit was decreed on 7.12.1995. The petitioner was held to be in possession. A subsequent civil suit had been filed by the petitioner to restrain respondent No. 2 from interfering in his peaceful possession. Temporary injunction was granted on 30.8.1995 restraining respondent No. 2 from dispossessing the petitioner except in due process of law. The temporary injunction is still continuing. It was operative even on the date when the Receiver was appointed. When the civil suit was filed and pending, in that event, there was no occasion for appointment of the Receiver. It has once again to be reiterated that in such like situations, it is the proceedings under Section 107 Cr.P.C. that can be pressed into service to prevent breach of peace. Almost a similar situation arose in the case of Jai Singh and others v. State of Haryana, 1985(2) RCR 159. There was a dispute over possession. The civil court had passed an order to maintain statusquo. It was held that order under Section 146 Cr.P.C. could not be passed. The Supreme Court also considered the same in the case of Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) RCR 43. Considering he same fact, the Supreme Court observed :

"When a civil litigation is pending for the property herein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 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 respondent 25 was not in a position to challenge the proposition that the 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 proceeding should not continue and the order of the learned Magistrate should be quashed."

The facts of the present case which have already been given above show that position of the petitioner is on better footing. Even the police kalandra reported the petitioner to be in possession. If there was any apprehension of breach of peace and another person was trying to encroach upon the possession of the petitioner, the civil court should be permitted to decide the same. The breach of peace could be prevented by taking resort to the security proceedings. There was, thus, no justification for passing of the impugned order.

For these reasons, the petition is allowed. The impugned orders passed by the learned Sub Divisional Magistrate are quashed.