Rajbir Singh vs Maha Singh

K.K. Srivastava, J.

This petition filed under Section 482, Criminal Procedure Code, seeks the quashing of proceedings drawn by respondent No. 3, City MagistratecumExecutive Magistrate, Narnual district Mahendergarh, under Sections 145/146 of the Code of Criminal Procedure hereinafter referred to as ''the Code'').

The respondent No. 1 Maha Singh initiated the case before the City Magistrate/Executive Magistrate (respondent No. 3) who assumed jurisdiction under Section 145 of the Code and passed a preliminary order. The learned City Magistrate also ordered attachment of the disputed land with standing crops thereon and appointed a Receiver in respect of the crops. The petitioners Rajbir Singh, Ved Parkash and Mohinder Singh sons of Beg Raj and Randhir Singh and Jaipal Singh sons of Bahadur Singh, all residents of village Bapdoli tehsil Narnaul district Mahendergarh claimed themselves to be the owners to the land in dispute and they also alleged their possession. The petitioners have alleged that the impugned order dated 13.3.1996 passed by respondent No. 3 appointing the Receiver of the attached land and crop is prima facie illegal and totally without jurisdiction. Respondent No. 1 Maha Singh filed application for initiating proceedings under section 145 of the Code on 12.3.1996 by alleging wrong and distorted facts. The true facts were concealed and suppressed by the respondent No. 1. The copy of the application filed by respondent No. 1 under sections 145/146 of the Code has been annexed as Annexure P1. The dispute related to the land comprised in Khewat No. 90, Khatauni No. 114 Rectangle and Killa Nos. 2/15(317), 16(80), 25(80), 6/23/2(316), 24(711), 10/23/1(218), 13/3/(712), 8/1(27), 9/1(32), 12/4(02), 28/16/2(316) and 7/1(40), having total area of 55 kanal and 1 marla situated in the revenue estate of village Bapdoli, aforesaid. According to the averments made in the application (Annexure P1), one Sheo Chand son of Ruda caste Jat resident of Bapdoli was the owner in possession of said land. It was alleged that respondent No. 6 of the said application, namely, Chhotu Ram son of Shiv Lal obtained a fictitious gift deed in his favour by impersonation and apparently executed by Sheo Chand aforesaid. The gift deed is dated 17.3.1989 bearing No. 2110. A mutation order was also obtained on the basis of the gift deed. The respondent No. 7 of the said application, namely, Sunil Kumar Grewal, a minor adopted son of Sheo Chand challenged the gift deed in Civil Suit No. 693 dated 17.2.1994 in the Court of Sub Judge, Narnual. The said civil suit was decreed on 23.11.1994 and the gift deed and mutation order passed on the basis of gift deed were set aside. The applicant Maha Singh, who is respondent No. 1 in the petition, alleged his possession over the land in dispute as tenant Giar Marusi under Sheo Chand aforesaid. The entries in the revenue records, however, were continuing in the name of respondent No. 6 (Chhotu Ram aforesaid) in the column of cultivation, which were wrong and contrary to law. An effort was made by Maha Singh for the correction of Khasra Girdawri entry in the Court of Assistant Collector Ist Grade, Narnaul, which was accepted by order dated 1.8.1994 and the Khasra Girdawri entry was corrected in favour of Maha Singh. The respondent No. 6, Chhotu Ram aforesaid, filed an appeal against the order of correction of the Khasra Girdawri, which was pending. During the pendency of the civil suit No. 693 of 1994, the respondent No. 6, namely, Chhotu Ram, who was defendant No. 1 in the civil suit, transferred the land in dispute to respondents Nos. 1 to 5, namely, Rajbir, Ved Parkash, Mohinder Singh, Randhir Singh and Jagpal Singh vide registered sale deeds dated 24.3.1994 and 25.4.1994. The sale deeds were alleged to be void and without any valid and legal authority and were hit by the principle of lis pendens and also in view of the setting aside of the gift deed. Consequently, the respondents Nos. 1 to 5, aforesaid, had got no valid title over the disputed land. However, notwithstanding the aforesaid facts, the respondents Nos. 1 to 5 filed a civil suit and obtained an order of ad interim injunction against Maha singh, which was challenged by Maha Singh in appeal before the Additional District Judge, Narnaul, who passed an order about status quo on 15.11.1994. Sheo Chand aforesaid also accepted respondent No. 7 Sunil Kumar Grewal as the owner of the land in dispute by giving it through a mutual family settlement. A decree dated 28.1.1995 was passed by the Civil Court in favour of respondent No. 7 in civil suit No. 52 of 1995. Maha Singh claimed his tenancy Gair Marusi rights under the respondent No. 7. The grievance of the applicant Maha Singh before the City Magistrate/Executive Magistrate, Narnaul, was that the respondents Nos. 1 to 5 as also respondents Nos. 6 and 7 of the application, in collusion with each other, were bent upon disturbing peace by threatening to take forcible and illegal possession of the disputed land from the applicant Maha Singh as a result of which there was a reasonable apprehension of breach of peace. Initially, proceedings under Sections 107/151 of the Code were initiated at the instance of the police against the said respondents Nos. 1 to 5, but that did not deter these respondents from interfering in the possession of the applicant Maha Singh in respect of the land in dispute. Subsequent instances of interference with the possession of the applicant Maha Singh were mentioned in the application with a prayer for initiation of proceedings under Section 145 of the Code and appointment of a Receiver under Section 146 of the Code was prayed for.

The learned Executive Magistrate passed an order on 13.3.1996, a copy of which has been annexed as Annexure P2, wherein he held that he was satisfied that there was tension between both the parties regarding the possession over the disputed land and cutting of the standing crops due to which breach of peace could take place at any time and any serious offence could be committed. Being of this view, the learned Executive Magistrate ordered for attachment of the land and also passed an order of appointment of Receiver of the disputed land with crops standing thereon. The Halqa Girdawar was directed to take the disputed land with standing crops in his possession and he was appointed the Receiver. By another order passed on 13.3.1996, a copy of which has been annexed as Annexure P3, a separate order of attachment was passed in respect of the disputed land along with standing crops authorising the Girdawar Halqa to attach the land with standing crops by keeping possession thereof and to hold the same under attachment until the order of the competent Court determined the rights of the parties and the claim of possession. A report regarding the execution of warrants of attachment was called for.

The petitioners have impugned the proceedings under Sections 145/146 of the Code and the orders dated 13.3.1996 passed by the respondent No. 3, as mentioned already. The grounds on which the proceedings are sought to be quashed and the impugned orders are sought to be set aside are that the civil dispute regarding the ownership/possession of the disputed land is already pending in the Civil Court of competent jurisdiction and in view of the pending civil case, the Executive Magistrate cannot under the law draw and maintain proceedings under sections 145/146 of the Code. The petitioners also contended that they were rightful owners of the disputed land being the bona fide purchasers for due consideration and they took physical possession of the disputed land; and since then they had been contimuonsly cultivating the land. The learned Executive Magistrate cannot, under the garb of factually incorrect averments regarding the danger of breach of peace, dispossess the petitioners by appointing a Receiver of the land with standing crops.

Notice of motion was issued to the respondents. Respondent Maha Singh put in appearance and moved an application (Crl. Mics. No. 5699 of 1996) for vacation of the stay order dated 21.3.1996 passed by this Court. No separate reply was filed by respondent No. 1. The other respondents did not appear to contest the case. In his application (Crl. Misc. No. 5699 of 1996) respondent No. 1 inter alia mentioned that Chhotu Ram respondent No. 4 has nothing to do with the ownership and possession of the disputed land. The respondent Chhotu Ram by impersonation got fictitious gift deed allegedly executed by Sheo Chand on 17.3.1989 and succeeded in securing mutation in his favour. He reiterated the averments regarding the challenge of the gift deed by respondent No. 2 Sunil Kumar by filing civil suit referred to above. It was also mentioned that suit was decreed and the gift deed was declared to be null and void. Another Civil Suit No. 809 dated 7.6.1994 was filed on 7.6.1994 in which an order of ad interim injunction was passed, which was challenged in appeal where order for status quo was passed. He mentioned that the order of attachment and appointment of Receiver dated 13.3.1996 has already been implemented inasmuch as the Receiver has taken possession of the disputed land vide his Report No. 293 dated 14.1.1996. The Receiver is not in possession of the land in dispute and he is managing the same. He mentioned that it is better and in the interest of the parties that the Receiver may get the crops harvested and proceeds of the crops should be given to a party whose possession is proved on the land by final orders.

The petitioners opposed the application for vacation of the stay order by filing a written reply in which they denied the averments made in the application and reiterated their earlier stand. They also mentioned that the two Civil suits were, in fact, still pending between the parties as would appear from Annexures P4 and P5. It was also mentioned that had there been some truth in the application of respondent No. 1, then Sheo Chand would have filed the suit challenging the gift deed in favour of Chhotu Ram, but Sheo Chand did not challenge the gift deed and it sufficiently showed that there was collusion between Sunil Kumar, Sheo Chand and respondent No. 1. These petitioners have mentioned that the true facts of the case are that they have already harvested the crops standing on the disputed land and that too in their own right. There is no apprehension of breach of peace as the controversy has been set at rest by the orders passed by the Civil Courts (Annexures P4 and P5).

I have heard the learned counsel for the parties.

The petitioners have challenged the impugned orders dated 13.3.1996, copies of which are Annexures P2 and P3, passed by the Executive Magistrate, Narnaul, respondent No. 3 on the grounds, inter alia, that the dispute regarding the title to the land involved in the proceedings under Sections 145/146 of the Code is already pending before the Civil Courts of competent jurisdiction in two civil suits. These civil suits are : suit No. 809/1994 instituted on 7.6.1994 by the petitioners against respondent No. 1 Maha Singh and two others in the Court of Mr. Vinod Jain, Senior Sub Judge, Narnaul, and Civil Suit No. 689/1994 instituted on 25.8.1994 in the Court of Mr. Sanjeev Jindal, Sub Judge Ist Class, Narnaul, by respondent No. 1 Maha Singh against the petitioners. In the civil suit instituted by the petitioners, the Senior Sub Judge granted ad interim injunction in favour of the petitioners and against the defendants of the suit including respondent No. 1 Maha Singh restraining them from interfering in the ownership and possession of the petitioners over the suit land till the final decision of the case. The order passed by the learned Senior Sub Judge, Narnaul, is dated 5.9.1994. In the suit filed by respondent No. 1, the application for ad interim injunction was dismissed by the learned Sub Judge Ist Class, Narnaul, on the same date i.e. 5.9.1994, and in Misc. Civil Appeal No. 193 of 1994 dated 12.9.1994 filed by respondent No. 1 Maha Singh, Mr. D.S. Rawat, Additional District Judge, Narnaul, in the presence of the appellant (Maha Singh) as well as the contesting respondents (petitioners) directed the parties to maintain status quo regarding possession vide order dated 15.11.1994. The respondent No. 1 Maha Singh moved the application under Section 145 of the Code before respondent No. 3 Executive Magistrate on 13.3.1996 vide Annexure P1, after the dispute regarding the land had already been raised before the Civil Court of competent jurisdiction. The contention of the petitioner is that in view of the fact that the dispute is pending before the Civil Court of competent jurisdiction which has already passed the order of ad interim injunction in favour of the petitioners and against respondent No. 1, the respondent No. 3, could not in law pass the impugned orders attaching the land in dispute and appointing a Receiver to divest the petitioners from possession of the land. The learned counsel of the petitioners submitted that in the facts and circumstances of the case, the impugned orders passed by the learned Executive Magistrate and continuance of the proceedings under Section 145/146 of the Code is an abuse of process of law. Once the matter is before the Civil Court, the findings of the Civil Court regarding possession and right to hold possession will be binding on the Executive Magistrate in the proceedings under Sections 145/146 of the Code. Apart from this ground for quashing the impugned orders as also the proceedings under Sections 145/146 of the Code, the petitioners have further urged that the respondent No. 1 suppressed material facts in the application, Annexure P1, and by concealing the material facts he misled the Executive Magistrate, who initiated proceedings under Sections 145/146 of the Code. Additionally, it was argued that the learned Executive Magistrate passed the impugned orders ex parte and in undue haste.

The law regarding the maintenance of the proceedings under Section 145 of the Code during the pendency of the civil case has been wellsettled. The learned counsel for the petitioners has placed reliance on the case of Ram Sumer Puri Mahant v. State of U.P. and others, AIR 1965 Supreme Court 472. In this case, the apex Court held that there is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court. It was held further that parallel proceedings under Section 145 of the Code 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.

In Balkishan and another v. Khazana Ram and another, 1987(2) Recent Criminal Reports 606 , this Court held that the question of title or the establishment of right to possession is outside the scope of an enquiry under Section 145 of the Code. It is well settled as a principle of law that when rights between the parties have been settled by Civil Court, the executive Courts must in respectful agreement of the settlement, preserve the rights of the parties as declared and not upset such settlement by supposed disputes of possession and the apprehensive breach of peace.

In Sanjeev Kumar and others v. Sub Divisional Magistrate and others, 1990(2) Chandigarh Law Reporter 488, a learned Single Judge of this Court held that it can be taken as certain that jurisdiction of the Executive Magistrate under Section 145 of the Code is not ousted simply on the ground that the Civil Court is seized of the dispute regarding possession of immovable property and has either granted a temporary injunction under JUDGMENT 39 Rules 1 and 2 of the Code of Civil Procedure or has directed the parties to maintain status quo. This jurisdiction is derived by the Executive Magistrate because of the paramount consideration of preventing a breach of peace. Reference was made to the Division Bench dicision of the Court rendered in Mohinder Singh (sic), 1976 PLR (sic). He further held that it is equally settled that finding of the Civil Court with regard to possession as also the right to be in possession is binding on the Executive Magistrate. A consideration of the facts of a given case may, however, render continuance of proceedings under section 145 of the Code or passing of an order under Section 146 of the Code unnecessary or even an abuse of the process of the Court. It was held that it was in such cases that this Court has quashed the proceedings under Sections 145/146 of the Code.

In Sanjeev Kumar''s case (supra), Civil Court''s order granting an injunction in favour of the petitioners was in force. Respondents Nos. 2 and 3, on the other hand, got an injunction in their favour at one point of time but when the petitioners put in appearance in order to oppose the same, the suit was got dismissed and the same had not been restored. The facts of that case further showed that having lost hope of regaining possession, respondents Nos. 2 and 3 resorted to violence regarding which criminal proceedings had been initiated against them. In that background, the proceedings under Sections 145 and 146 of the Code were held to be an abuse of process of the Court and the same were quashed.

This question was considered in another case by a learned Single Judge of this Court in Gurdial Singh Mann v. Dharampal Singh Mann and another, 1990(1) Chandigarh Law Reporter 47. The learned Single Judge cited the case of Jhunamal alias Devandas v. State of M.P., AIR 1988 SC 1973 wherein it was held as under :

"The ratio of the said decision is that a party should not be permitted to litigate before the Criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145, Cr.P.C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. An order made under Section 145, Cr.P.C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to the decisions of the civil Court. The unsuccessful party therefore must get relief only in the civil Court. He may move the civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached."

It, thus, follows that the pendency of a civil case will not automatically debar the jurisdiction of the Executive Magistrate to initiate proceedings under Section 145 of the Code. However, in a given case, where Civil Court has considered the matter regarding possession and right of the parties to hold possession, the finding of the Civil Court will be binding on the Executive Magistrate and in that case, the continuance of the proceedings under section 145 of the Code may amount to abuse of the process of law. Coming to the facts of this case, the petitioners claim themselves to be the purchasers of the land in dispute in which the respondent No. 1 claimed tenancy rights. The petitioners claimed themselves to be in possession of the disputed land and the Civil Court in the suit instituted by the petitioners granted an order of ad interim injunction restraining respondent No. 1/defendant and others from interfering with the possession of the petitioners in the suit land. Not only this, in the suit filed by respondent No. 1, the application for an interim injunction in respect of the same land filed by respondent No. 1, was dismissed. The Appellate Court passed an order directing the parties to maintain status quo. It did not mean that respondent No. 1 was in possession of the land in dispute. In the background of the pendency of the civil cases where the rights of the parties to hold possession of the land in dispute is involved and in view of the order of injunction having been granted in favour of the petitioners, the action of respondent No. 1 in getting the proceedings initiated after a long gap of time under Sections 145 and 146 of the Code, is evidently an abuse of the process of law. The continuance of the proceedings parallel to the civil suits instituted in respect of the same land necessarily would amount to abuse of process of law. The Executive Magistrate cannot divest a party who is holding possession and whose possession has been protected under the order of Civil Court, by attaching the property and appointing a Receiver.

In view of the foregoing discussion, the impugned orders passed by the learned Executive Magistrate/respondent No. 3 as also the proceedings under sections 145 and 146 of the Code deserve to be quashed. Consequently, this petition is allowed and the impugned orders (Annexure P2 and P3) and the proceedings before the Executive Magistrate are quashed.