Pushpinder Kaur vs Sub Divisional Magistrate, Rajpura

R.L. Anand, J.

Ms. Pushpinder Kaur, petitioner has filed the present petition under Section 482 Cr.P.C. for quashing of Police Calendra dated 26.6.1996, Annexure P.5 under Section 145 Cr.P.C. the preliminary order dated 15.7.1996 Annexure P.7 and the order dated 9.9.1996, Annexure P.8, under Section 146 Cr.P.C. passed by respondent No. 1 i.e. Sub Divisional Magistrate, Rajpura, praying that the aforesaid orders/actions on the part of the respondentauthorities are illegal and an abuse of the process of law.

In brief, the case set up by the petitioner in the present petition is that she is in established possession of the land in dispute since 197475 and that the contesting respondents Nos. 4 to 7 at no point of time were in possession and inspite of the established possession of the petitioner, the learned Sub Divisional Magistrate took erroneous view and assumed jurisdiction not vested in it by acting under Section 145 Cr.P.C. and passed the impugned order vide which the possession of the land in dispute was handed over to the receiver.

The contest given by the respondents is on the plea that the petitioner is not in established possession. Throughout the contesting respondents are the owners and in possession of the land in dispute. Keeping in view the fact that there was breach of peace over the land in dispute, the proceedings have been rightly initiated by police and the learned S.D.M. rightly passed order under Section 145(1) Cr.P.C. read with Section 146(1) Cr.P.C.

In support of their pleadings, both the parties have placed certain documents on record which I will presently discuss.

I have heard Shri R.N. Raina, Advocate, learned counsel for the petitioner and Sarvshri S.S. Gill, DAG, Punjab, Mr. Ashwani Talwar, Advocate and Mr. T.P.S. Tung, Advocate, appearing on behalf of the respondents.

The preliminary argument which was built by Shri Raina, appearing on behalf of the petitioner is that it is established that since 197576, the petitioner is in possession of the property in dispute and in support of his contention, he has invited my attention to the jamabandis for the years 1975 76, 198283, 198788, and 199293. He submitted that the opposite party which obtained the order dated 24.1.1995 passed by Assistant Collector II Grade has already been set aside vide order Annexure P.2 passed by the Collector, Sub Division, Rajpura on 4.7.1995 by holding that the impugned order dated 24.1.1995 was bad in the eyes of law and the same was nullity as the said order has been obtained against a dead person. The learned counsel Shri Raina further submits that as per the stand taken up by the contesting respondent No. 4 Tek Chand, it has been admitted that he had gone to Haryana during the days of terrorism and during that period Ranjit Singh husband of the petitioner started cultivating the land and got the khasra girdawari recorded in his name. From these averments Shri Raina, submits that as per the stand of respondent No. 4, the possession of the petitioner was fully established and in these circumstances, the learned S.D.M. was totally unjustified in taking cognizance under Section 145(1) and under Section 146(1) of the Code of Criminal Procedure.

On the contrary, the stand taken up by the contesting respondents is that at all material times they are in possession. The petitioner is an influential person being the widow of a retired Inspector General of Police and also being sisterinlaw of Shri Surinder Singh Kairon who is a political bigwig and has remained a Member of Parliament and even Minister besides being son of an Exchief Minister of Punjab. The land in question being situated on the main ChandigarhAmbala National Highway, has become the prime property and the petitioner, by using her undue influence wants to grab this piece of land which is purchased by the respondent No. 4 through a valid registered sale deed way back on 1.6.1972 and respondent No. 4 is in cultivating possession over this piece of land since then and the land is actually owned by respondent No. 4.

Before I proceed further, I would like to advert to the averments made in the Calendra under Section 145 of the Code of Criminal Procedure which have been translated faithfully by the petitioner vide Annexure P.5/T. In the body of this calendra, S.H.O. Police Station, Lohgarh has averred as follows :

"The brief facts of the case are that Tek Chand son of Babu Ram, resident of Kaleke Tehsil Barnala Distt. Sangrur had purchased land measuring 8 bighas 18 biswas on 1.6.1972 in the village Bishangarh, which land Tek Chand son of Babu Ram got personally cultivated for a few years, and while the terrorism was at its peak, he went in Haryana and did not come to his land for several years; then Shri Ranjit Singh Grewal I.G. Retired whose is the adjoining land, started cultivating the said land of Tek Chand and got the Girdawari recorded in his own favour. Now, in the year 1994, by giving an application to the Department of Revenue, Tek Chand got transferred the Girdawari in his name. When Pushpinder Kaur etc. came to know about this, then they filed a civil suit in the Court at Rajpura, on which the Judge Sahib ordered status quo and filed a civil case before the S.D.M., Rajpura who by remanding the case sent the same to the Naib Tehsildar Dera Bassi so that by going on the spot may submit a report about the Girdawari. Now, both the parties are claiming their own possession on the land measuring 8 bighas 18 biswas. Sometimes, one party sows a crop and sometimes the other party. As per records of the Revenue Department, Tek Chand is the owner of the said land and the dispute regarding Girdawari has been going on in different Courts. Both the above parties are adamant and at any time, a serious crime could take place for the purpose of taking possession of the land and thus both the parties could get hurt. Therefore, through this application, it is requested that 3 bighas 4 biswas of Killa No. 456 and 3 bighas and 14 biswas of Kill No. 455 totalling 6 bighas 18 biswas in village Bishangarh put under Section 145 Cr.P.C. when the cases of both the parties are pending litigation in the Court and action would be taken in accordance with the order of the Court".

The object of Section 145 Cr.P.C. is primarily to maintain peace and tranquility over the property regarding which the warrior parties are agitating regarding their rights over the possession. The case throughout by the petitioner is that she was in possession of the land in dispute since 197475; whereas the contest given by respondent No. 4 is that this land is in his possession since 1.6.1972. In order to adjudicate their rights with regard to the respective possession, Smt. Pushpinder Kaur filed a civil suit in the Court of Shri J.S. Bhinder, Senior Sub Judge, Rajpura. It was a suit for permanent injunction in which the petitioner has prayed that defendant Tek Chand be restrained from interfering in her peaceful possession of the land in dispute and she has categorically alleged in the said suit that earlier one Ranjit Singh was cultivating the suit land on her behalf and after the death of said Ranjit Singh, she became the owner of the land on the basis of a will dated 12.4.1993 and entered into possession and that Tek Chand had no right, title or interest in the said land and in spite of that he wanted to dispossess her. It was the stand of Tek Chand that he is owner in possession of the suit land and he never delivered possession of the suit land to said Ranjit Singh either on chakota or Batai and a part of the land measuring 6 bighas 14 biswas had been in the self cultivating possession of Tek Chand. It is the categorical stand of respondent No. 4 Tek Chand that Pushpinder Kaur never came into possession of the suit land. The parties placed documents before the trial court and in para No. 4 of the order dated 12.9.1995 it was held as follows :

"A copy of jamabandi Ranjit Singh son of Gajan Singh is shown to be owner of the suit land. At this stage both the parties are claiming their respective possession on the suit land. So as evidence is still to be led by both the parties, so both the parties are directed to maintain status quo regarding possession over the suit land till final decision of the main suit."

Need not to mention that this order dated 12.9.1995 was not challenged by any of the parties. The above order would show that only status quo was granted with respect to the land in dispute, giving right to both the parties to lead evidence to prove their established possession. There is no finding given by the Civil Court that Smt. Pushpinder Kaur was in established possession and Tek Chand should be injuncted upon from entering into the alleged established possession. One more order which requires to be quoted in the present judgment is the order passed by the Collector II Grade vide which khasra girdawari for the years 199495 was amended and this order was passed by Assistant Collector II Grade on 24.1.1995.

Ranjit Singh and Smt. Pushpinder Kaur were not satisfied with the said order and the said order dated 24.1.1995 was challenged before the learned Collector who vide order dated 4.7.1995 held that while changing the khasra girdawari, the application was moved against a dead person and in these circumstances the impugned order dated 24.1.1995 could not validly be passed. Directions were given by the learned Collector vide order dated 4.7.1995 by remanding the case that a fresh decision be given after impleading the legal representatives of the deceased Ranjit Singh. It is a fact that till today there is no finding in favour of the petitioner regarding the correction of khasra girdawari for the years 199495. As I submitted earlier, the stark argument raised by the learned counsel for the petitioner that right from 1974 Smt. Pushpinder Kaur is in possession of the property. But this Court is not prima facie inclined to accept the contention of Shri R.N. Raina, in view of the orders passed by the Civil Court in which the only finding was with regard to status quo. The Civil Court did not think proper and right to give a specific finding in favour of the petitioner regarding her established possession. When both the parties are agitating under the assumed notion regarding their established possession over the land in dispute giving a cause for the commission of breach of peace, under these circumstances, the police as well as the Executive Magistrate were justified in starting and initiating proceedings under Section 145 Cr.P.C. and the Executive Magistrate was further justified in passing order under Section 146(1) of the Code of Criminal Procedure by appointing a receiver with respect to the property in dispute and in this regard I will be fortified by law laid down in 1976 PLR 803 Mohinder Singh v. Dilbagh Rai, which has been cited by the learned counsel appearing for respondent No. 4. The relevant paras Nos. 10 and 11 of the judgment can be quoted as follows :

"The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a civil Court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or one of them to get into actual possession. If the situation deteriorates, then the police or the Magistrate cannot act as silent spectators to witness the breach of peace; if they act in such circumstances and the Magistrate attaches the subject matter of the dispute under section 145, Criminal Procedure Code then he would be acting to defend the maintenance of the status quo as ordered by the civil Court.

11A. Such situations are not purely hypothetical or conjectural but do occasionally arise in the Courts. The position that the Magistrate under Section 145, Criminal Procedure Code, cannot continue with the proceedings when the civil Court is seized of the case or passes injunction orders referred to above, if accepted, can lead not only to breach of the peace but also to disrespect to the orders and the process of the Civil Courts. M.R. Sharma, J. sitting singly, giving a dissenting view to the above referred to case, in Criminal Misc. No. 728M of 1975, Bir Singh v. State of Haryana, decided on 15th July, 1976, on similar facts referring to Teja Singh''s case observed: "There is no quarrel with the aforementioned proposition of law but in a matter like this no hard and fast rule can be laid down. Sometimes during the pendency of a civil suit and during the continuance of an order of injunction passed by a civil Court, the parties do violate the peace and try to take forcible possession of the land from one another. In such a situation the police or the weaker party would not be absolutely debarred from initiating proceedings under Section 145 of the Code of Criminal Procedure." A Magistrate acting under Section 145, Criminal Procedure Code is called upon to decide a question of possession, the nature and period of which is limited by this Section. The Magisterial authority is quicker and has more effective sanction behind the orders passed under Section 145, Criminal Procedure Code for avoiding the breach of peace or recurrences of such breaches, as compared with the powers of the civil Court under JUDGMENT XXXIX, rule 2(3), Civil Procedure Code. The finding recorded or the decision returned by a Magistrate in such cases is, of course, subject to the decision of the Court, as the rights of the parties to possession are not decided in proceedings under Section 145, Criminal Procedure Code. The mere pendency of the civil suit about the same subject matter between the same parties or the orders of the Civil Court of the type discussed above do not restrain the Criminal Court from exercising jurisdiction under Section 145, Criminal Procedure Code. Their Lordships of the Supreme Court in R.H. Bhurani v. Miss Man J. Desai, approving the decision of the Bombay High Court in Jiba v. Chandulal, observed: ''In AIR 1926 Bombay 91, the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such possession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or deemed possession under the second proviso". In Sajjan Singh''s case the facts were that the parties had more than two rounds of civil litigation about a house. On the report of the police the SubDivisional Magistrate attached the property in dispute, that is, the house. One of the parties filed a suit for permanent injunction against the other party and obtained an injunction that his possession be not disturbed. He moved the SubDivisional Magistrate for the stay of the proceedings under Section 145, Criminal Procedure Code, and also produced the injunction order. The SubDivisional Magistrate dismissed the application. The High Court upheld the order of the attachment as well as the appointment of the receiver made by the Sub Divisional Magistrate. In appeal to the Supreme Court the order of the High Court was questioned. The Supreme Court upheld the order of the High Court and observed : "In our opinion this case must go back to the SubDivisional Magistrate for decision of the proceedings before him. Those proceedings commenced as far back as 1967 and the question whether there is or there is not any apprehension of breach of peace will certainly have to be decided in the light of the happenings in the Civil Court. In the meantime we do not see any reason to order the setting aside the order of the High Court. It will be open to the Sub Divisional Magistrate to consider whether the Receiver should be continued or nor, but in any event, he shall not disturb the possession of Sajjan Singh son of Jagan Nath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings under Section 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side". The ratio of both these judgments of the Supreme Court is that the pendency of the same matter between the same parties in civil Court does not mean the ouster of the jurisdiction of the Executive Magistrate under Section 145, Criminal Procedure Code in spite of the stay order. A perusal of the judgments of the above referred to six cases shows that R.H. Bhutani and Sajjan Singh''s cases were not brought to the notice of the Hon''ble Judges, deciding those cases. Had these cases been brought to their notice, I am sure the view taken by the Hon''ble Judges would have been different. With due respect to the Hon''ble Judges deciding the above referred to cases their view cannot be preferred to the view of the Supreme Court in Sajjan Singh''s case".

For advantage 1994(3) Recent C.R. 217 Prakash Chand Sachdeva v. State and another, can also be relied upon.

Faced with this difficulty, the Ld. counsel for the petitioner has drawn my attention to a recent judgment pronounced on 17.3.1997 by the Hon''ble Division Bench of this Court in Criminal Misc. No. 2807 of 1992 Tek Ram and another v. Sub Divisional Magistrate, Panipat and others, 1997(2) RCR (Crl.) 549. This Judgment has been read in extenso by the Ld. counsel appearing for the petitioner for my assistance and in order to convince me that when the civil matter is pending before the Civil Court, then starting of parallel proceedings under Section 145 Cr.P.C. would be an abuse of the process of law. The judgment which has been relied upon by the Ld. counsel for the petitioner in my opinion is distinguishable on facts. This judgment is based upon the judgment of Hon''ble Supreme Court reported as AIR 1985 Supreme Court 472 : 1985(1) RCR (Crl.) 278 where the following findings have been given by the Hon''ble Supreme Court.

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of parallel criminal proceedings under Section 145 of the Code, would not be justified. 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".

In the opinion of this Court, the Hon''ble Judges of this Court as well as of the Hon''ble Supreme Court wanted to convey to the Courts that the question of established possession has been adjudicated in favour of one party or the other, the erring party or the defeated party under the garb of Section 145 Cr.P.C. cannot approach the Executive Magistrate or the Police to undo which has already been done in a Civil Court. But once the rights of the parties are in a fluid state and there is no specific finding regarding the possession in one way or the other and the parties are in a mood to commit breach of peace, in such a situation the provisions of Section 145 Cr.P.C. can always be and should be attracted so that the parties may be kept apart from committing the breach of peace.

In this view of the matter I am of the considered opinion that there was no wrong on the part of the police when it filed the calendra under Section 145 Cr.P.C. and also there was no wrong on the part of the Executive Magistrate when he passed order under Sections 145(1) and 146(1) of the Code of Criminal Procedure.

Seeing no merit in this petition, it is dismissed.