Phuman Singh vs District Development and Panchayat Officer

Harmohinder Kaur Sandhu, J.

This is a petition under Section 482 of the Code of Criminal Procedure, seeking indulgence of this Court to quash proceedings under Section 145 of the Code, pending before respondent No. 1 and subsequent order of attachment.

The dispute in this case related to 102 Kanals 11 Marlas of land situated in Dera Kalan, Tehsil Thanesar, District Kurukshetra which is recorded to be ownership of respondents No. 2 to 10. The petitioner Phuman Singh alleged that he had become owner of the land being in peaceful cultivating possession of the same for the last more than 20 years. His possession was without any kind of interruption and obstruction from the owners. He had a residential house in the disputed land as well as cattle shed, tubewell and a kotha. He filed a civil suit for declaration with consequential relief for permanent injunction with respect to this land and in that suit an order to maintain status quo regarding possession was passed on 15.3.1991. Since the entries in the revenue record were in the names of the respondents Gulshan Kumar and others, they also filed a suit for permanent injunction and moved an application under JUDGMENT 39 Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction. Shri Balbir Singh, Sub Judge Ist Class, Kurukshetra granted them temporary injunction vide order Annexure P2 passed on 27.4.1991. Phuman Singh also filed an application for correction of entries in khasra girdawari and that application was pending before Tehsildar Thanesar.

As both the parties claimed to be in possession of the land, calender under Section 145 of the Code of Criminal Procedure was submitted in the court of District Development and Panchayat Officer, Kurukshetra by Station House Officer, Police Station, Thanesar. After going through the written statements filed by the parties and hearing the counsel an order regarding attachment of the property was made and Tehsildar Kurukshetra was appointed as receiver of the land in dispute who was directed to take possession of the same. These proceedings under Section 145 of the Code of the Criminal Procedure are being assailed by Phuman Singh petitioner on the ground that dispute regarding possession of the land was already pending in the civil Court, therefore, the proceedings were not competent. Respondent No. 1 had no right or jurisdiction to appoint a receiver to take possession of the land as in one civil suit temporary injunction had been granted and in the other suit order was passed to maintain status quo regarding possession. The appointment of receiver would cause dispossession of the party whosoever was in possession of the land and thereby the order of the Civil Court would be violated. Even otherwise the order passed by respondent No. 1 was mala fide and amounted to an abuse of the process of the Court. It was passed with the sole object of helping respondents No. 2 to 10 to take forcible possession of the property.

In the return filed by respondent No. 1, it was contended that there was imminent danger of breach of peace at the time of harvesting crops on the land in dispute and the matter was of emergent nature. So the order of appointment of the receiver was legally passed. The matter had not been finally decided by any competent authority, so the proceedings under section 145 of the Code of Criminal Procedure could be lawfully initiated.

Respondents No. 2 to 10 also filed a reply to the petition wherein they asserted that they were owners in possession of the land in dispute and entries in the revenue record were in their favour. The petitioner had not become owner of the land by adverse possession nor he was having his residential house over the site in dispute. They further pleaded that they filed a civil suit in which ad interim injunction was granted to them whereby Phuman Singh was restrained from interfering in their possession. The petitioner had filed an appeal against the order of the trial Court which was dismissed on 26th July, 1991. The order passed in civil suit filed by the petitioner on 15.3.1991 was ex parte and it was never confirmed. According to the respondents inspite of the injunction issued by the court, the petitioner alongwith his companions wanted to dispossess them. Therefore, to protect the orders of the Civil Court proceeding under Section 145 of the Code of Criminal Procedure were initiated at the instance of respondent No. 1 and pendency of civil litigation was no bar to the proceedings in the instant case.

I have heard the Counsel for the parties and have perused the record.

It was argued on behalf of the petitioner that civil suits are pending with respect to the land in dispute and civil court is already seized of the matter. In the case filed by the petitioner an order of status quo regarding possession was passed. Appointment of receiver by the Executive Magistrate in these circumstances was not valid as it was to cause dispossession of the party who was in actual possession of the land and the proceedings under Section 145 of the Code of Criminal Procedure were liable to be quashed on this short ground. In support of this contention he referred to the cases of Mst. Manzooran v. The State of Punjab and others, 1987(1) Recent Criminal Reports 405 and Jai Singh and others v. State of Haryana, 1985(2) Recent Criminal Reports 159 but I find that both these authorities are not applicable to the facts of the present case as in this case the civil court had found that respondents No. 2 to 10 were prima facie in possession of land and balance of convenience was in their favour. The respondents had filed a suit for permanent injunction restraining the petitioner from interfering in their possession in which they had moved an application for grant of temporary injunction. After hearing the counsel for the parties, order Annexure P2 was passed on 27th April, 1991. Against this order an appeal was preferred by Phuman Singh petitioner which was dismissed as per order dated 27th July, 1991 Annexure R2. Inspite of the fact that Phuman Singh was restrained from interfering in the possession of the respondents he tried to interfere in their possession thus respondent No. 1 had to approach the police and a calender was then presented in the court for taking proceeding under Section 145 of the Code of Criminal Procedure. As the proceedings were initiated at the instance of the party in whose favour an injunction had been issued, the same were quite valid and were not liable to be quashed. In the case of Pritam Singh and others v. State of Punjab and another, 1985(2) Punjab Law Reporter 463 it was held :

"After the issue of an order by the civil Court granting ad interim injunction in favour of one party proceedings under Section 145, Code of Criminal Procedure and the attraction of its emergency power under subsection (4) could be taken by the Executive Magistrate only at the instance of the party in whose favour the ad interim injunction has been issued and not at the instance of the party who has been restrained from interfering with the possession of the property."

Mohinder Singh v. Dilbagh Rai, 1976 Punjab Law Reporter 803 is another authority on this point wherein it was held that if the other party uses force to dispossess him, inspite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under Section 145 Criminal Procedure Code and attraction of its emergency powers under subsection (4), the Magistrate will then step in not to start parallel proceedings but to defend the orders of the civil Court by not allowing the aggressor to establish himself in possession of the subjectmatter of the dispute in violation of the orders of the Court.

Section 145 of the Code empowers the authorities concerned to take immediate preventive action, in an emergency. Cases are not unknown in which inspite of an injunction issued by a civil Court, the parties had tried to take forcible possession of the land in disregard of the injunction orders. If a party in whose favour there is an injunction by the civil Court is not strong enough to retain the possession and approaches the authorities to intervene to protect its possession it would be in the fitness of things if the police intervenes in such a situation so that the orders passed by the civil Court are not flouted and are respected. In such a situation it will not be parallel proceedings because the proceedings launched under Section 145 of the Code are in aid of the civil Court. 1989(2) Recent Criminal Reports 440 : 1989(2) The Punjab Law Reporter 427, Jagdish Ram v. State of Haryana and others, is an authority on this point.

In the instant case an injunction order has been issued in favour of respondents No. 2 to 10 which was confirmed by the appellate Court. Phuman Singh petitioner who claimed himself to have become owner of the land by adverse possession still tried to interfere in the possession of respondents No. 2 to 10 which led respondent No. 1 to approach the police. Proceedings were thus initiated by the Executive Magistrate to defend the order passed by the Civil Court and as such were not barred because civil Court was seized of the matter. There was no final determination of the rights of the parties by the Civil Court as yet.

In view of the above discussion, I find no merit in this petition and dismiss the same.