Man Singh vs State of Haryana

A P. Chowdhri, J

This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred as the Code), for quashing order Annexure P2 dated 15.7.1988 under Section 146 of the Code ''passed by Sub Divisional Megistrate, Kaithal, attaching the lead in question and appointing a receiver thereof till the decision of that the proceedings under Section 145 of the Code. Brief facts of the case are agricultural and 19 kanals 15 marla by ad measurement situated at village Reseotpura belonged to one Smt Bugari. The case of the petitioner, Mac Singh, is that the said Smt. Bugari through her husband Dharam Singh, under power of attorney from him, leased out the said land on 16.10.1979 for 99 years in favour of the petitioner. The lease deed is registered. The petitioner claims that he was delivered possession of the land. The private respondents No. 2 to 4 Bidhi Chand Chand etc. obtained a sale deed in their favour on 28.4.1980 with regard to the same land, having been executed by Ram Kala, brother of Smt. Bugari, under a power of attorney, from her. On, the basis of the said, sale deed, the private respondents No 2 to 4 sought to interfere in possession of the petitioner. They filed civil suit but failed to obtain any temporary injunction against the petitioner. They, therefore, got initiated proceedings under Section 145 of the Code before the Sub Divisional Magistrate and also succeeded in obtaining an order of attachment under Section 146 of the Code. According to the petitioner, he had been in possession of the land and it was to prevent him from harvesting the crop which he had sown that the respondents resorted to proceedings under Sections 145/146 of the Code and this was an abuse of the process of the Court.

The petition not been resisted by private respondents No. 2 to 4.

Shri Chander Singh, learned counsel for the petitioner, put forward two contentions : (i) admittedly, civil suit is pending between the parties. That being so, parallel proceedings before the Sub Divisional Magistrate cannot be continued. Reliance was placed on Ram Sumer Puri Mahant v. State of U.P. and others, 1985(1) Recent Criminal Report 278 : AIR 1985 Supreme Court 472 , (ii) that no case of emergency has been made out and, therefore, the Sub Divisional Magistrate had no jurisdiction to pass the order under Section 146 of the Code.

Shri Akash Jain, learned counsel for the private respondents on the otherhand, contended that the pendency of the civil suit is not an absolute bar to the proceedings under Section 145 of the Code and in the facts and circumstances of the present case and to prevent breach of peace between the parties, it was necessary that the said proceedings were continued before the Sub Divisional Magistrate. He further contended that necessary emergency for passing an order of attachment is clearly made out from the report of the police dated 511988 Annexure. P 1 under Section 145 of the Code and the order passed by Sub Divisional Magistrate dated 15.7.1988 Annexure P2.

I have given anxious consideration to the respective submissions of the learned counsel. It will be useful to briefly state the claim made by the petitioner, on the one hand, and the private respondent on the other hand, with regard to being in actual physical possession of the land in question This would go a long way to show that there exists a substantial dispute between the parties and there, can be reasonable apprehension of breach of peach unless necessary preventive action by way of proceedings under Sec. 145 as well as under Section 146 of the Code arc. taken. The claim of the petitioner to be in possession is on the basis of lease deed dated 16.10.1979 in which he claims that possession was delivered to him by the lessor. The learned counsel for the petitioner emphasised that the lease deed was registered document and it was recited therein that possession of the land had been delivered to the lessees. The claim of private respondents, on the other hand, is that prior to the lease deed in favour of the petitioner, Smt. Bugari through her brother and attorney Ram Kala entered into an agreement of sale of the said land on 3.9.1979. Earnest money was paid to the vendor and possession of the land was delivered under the agreement to the agreement Purchases Smt. Bugari showed reluctance to execute the sale deed in their favour in accordance with the agreement to sell and it appeared that she would make the sale in favour of somebody else. The respondents, therefore, filed a civil suit obtained an injunction against Smt. Bhugari restraining her from transferring the said land on a permanent basis in favour of a third person. During the pendency of that suit a compromise was reached and accordingly Bhugari through her brother and attorney Ram Kala executed registered sale deed dated 28.4.1980. The respondents had been in possession of the land throughout. Their further case was that lease deed in favour of Man Singh petitioner was only a paper transaction and in fact there was no question of transferring possession of the land under the least deed. In this connection the respondents placed on record copy of order Annexure R2 dated 511981 of Assistant Collector First Grade, Gulha, passed on a suit for possession under Section 50 of the Panjab Tenancy Act. 1887, filed by Man Singh against the private respondents. The learned Assistant Collector First Grade went into the question and held that Smt. Bugari had first entered into an agreement with the respondents; that the lease deed in favour of the petitioner was a paper transaction and actual physical possession of the land not been delivered to him under lease deed dated 16.10.1979. With regard to entry in. the Khasra Girdawari in favour of Man Singh, it was observed that the same was a stray entry having not been made in accordance with the procedure prescribed for changing the entry of possession.

The limited purpose of mentioning in some detail the respective claims of the parties is that there exists a substantial dispute with regard to actual possession of the land between the parties. It was so reported by the police and the report was accepted by the Sub Divisional Magistrate and he had clearly the jurisdiction to do so. No absolute proposition of law was laid down in Ram Sumer Puri Mahant''s case (supra) that pendency of civil suit ousts the jurisdiction of the Sub Divisional Magistrate under Sections 145, 146 of the Code. The authority is clearly distinguishable on the facts in that, in the facts of Ram Sumer Puri Mahant''s the civil court had found one party to be in possession and the matter was at the stage of appeal when proceedings under Section 145 came in for scrutiny. That is not so in the facts of the present case. There is no finding of civil Court yet either in favour of the petitioner or in favour of respondents No. 2 to 4. The emergency for passing the order is clearly made out from the report made by the police and the order itself, besides the fact mentioned above stating the claim put forward by the two sides. The object of proceedings under Sections 145, 146 of the Code is altogether different from the proceedings in the civil Court. It is to prevent the parties from taking the law in their own hands and enforcing their respective claims by force. If this were permitted, it would lead to a law of the jungle. The machinery, therefore, devised is that regardless of the title to be in possession whenever there is apprehension of breach of peace on the question of actual possession of land between two or more parties, the Executive Magistrate is empowered to take preventive action, call upon both the parties and decide the limited question as to who is in actual physical possession. It is apparent that there is no conflict between the provisions of Sections 145 and 146 of the Code on the one hand and the remedy by way of civil suit on the other hand.

For the foregoing reason, there is no merit in the petition; not any compelling circumstances have been made out for quashing the proceedings. The petition is, therefore, dismissed. Parties through their counsel are directed to appear in the Court of Sub Divisional Magistrate, Kaithal on 14291 for further proceedings according to law.