Rakesh Kumar vs State of Haryana

Rekha Mittal, J.—The present petition u/s 482 of the Code of Criminal Procedure (in short "Cr.P.C") has been filed for quashing of proceedings u/s 145 Cr.P.C. recommended by respondent No. 3 vide Report dated 29.9.2012 (Annexure P-3), order dated 15.11.2013 passed by respondent No. 2 (Annexure P-2) and all consequent proceedings arising therefrom.

Counsel for the petitioner contends that Ravinder Kumar, respondent No. 4 at whose behest the proceedings u/s 145 Cr.P.C. have been initiated, is the real brother of the petitioner. Ravinder Kumar submitted an application to the Sub Divisional Magistrate, Hisar (in short "SDM") alleging that he and Rakesh Kumar respondent No. 4 have agriculture land measuring 73 Kanals-10 Marlas and both of them have equal share i.e. 36 Kanals 15 Marlas but the respondent wants to grab the share of the petitioner (respondent herein). It is further averred that the respondent stopped the complainant from using the house constructed in the common land, damaging the crops of the complainant and creates problem whenever he goes to the fields for watering etc. It is argued that as the complainant has alleged himself to be joint owner of the land in question and has not claimed his exclusive possession over the land in dispute, the proceedings u/s 145 Cr.P.C. against the petitioner who is one of the co. owners, are not maintainable. For this purpose, he has relied upon the judgments passed by this Court in Kali Ram vs. State of Haryana 2003 (2) R.C.R. (Criminal) 595, Nahar Singh vs. State of Punjab 2000(3) R.C.R. (Criminal) 425 and Ram Karan vs. State of Haryana 1997(2) R.C.R. (Criminal) 591.

Counsel representing respondent No. 4, on the other hand, contends that the petitioner cannot lend any assistance to his contentions from the cited judgments in the face of averments raised in the reply filed by him before the SDM. Counsel has pointed out that in the reply, the petitioner (respondent therein) has denied the allegations contained in para 02 of the application with the plea that the answering respondent is owner and in possession of the land mentioned in this para. It is argued with vehemence that since the petitioner has claimed himself to be exclusive owner in possession of the land in question, no fault can be found in the action of the SDM in taking cognizance of the proceedings u/s 145 Cr.P.C. and appointment of Receiver apprehending breach of peace. In support of his contention, he has referred to the judgment of the Himachal Pradesh High Court in Daulat Ram etc. Vs. Smt. Shanti Devi, Counsel has further submitted that in Parkash Chand Sachdeva vs. State and another 1994(3) Recent CR 217, the Hon''ble Supreme Court of India has held that ratio in the judgment of Ram Sumer Puri Mahant Vs. State of U.P. and Others, cannot apply where there is no dispute about the title. It is further held that when claim and title are not in dispute and the parties on their own showing are co-owners and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance u/s 145 Cr.P.C.

Counsel for the petitioner, in reply, contends that even if the petitioner has inadvertently raised a plea claiming himself to be owner in possession of the land in question, as a matter fact, the petitioner and respondent are the joint owners in possession of the land in question which is yet to be partitioned amongst co-sharers. He has further reiterated that keeping in view the plea of the respondent himself in the application claiming himself to be joint owner without any plea of exclusive possession, the Magistrate was not competent to initiate the proceedings u/s 145 Cr.P.C. in view of position of law laid down in the judgments cited by him.

I have heard counsel for the parties and perused the case file. A plain reading of the application filed by Ravinder Kumar, respondent No. 4 would reveal that he has taken a categoric plea that the complainant and respondent have equal share to the extent of 36 kanals 15 marlas in agriculture land measuring 73 kanals 10 marlas but the respondent wants to grab his share. It is no where mentioned in the application that the applicant is in exclusive possession of the entire land measuring 73 kanals 10 marlas. The averments set up by the applicant that the respondent wants to grab his share necessarily implies that he had no grievance with regard to the share of the respondent. When the facts raised in the application filed by Ravinder Kumar are examined in the light of judgments relied upon by the counsel for the petitioner, I find force in the contention of the petitioner that the SDM should not have initiated proceedings u/s 145 Cr.P.C. as the land in question is jointly owned by Ravinder Kumar and his brother Rakesh Kumar and Ravinder Kumar has not claimed his exclusive possession on the joint land.

In Chhaju Ram vs. Sub Divisional Magistrate, Mohindergarh 1997(2) RCR (Criminal) 724 this court has held quoted thus:-

The consistent view taken in all the authorities is that unless the complainant alleges exclusive possession of a property, it is not within the competency of the authorities to start proceedings u/s 145 of the Code. Under Sub section 6 of Section 145 of the Code, the Magistrate has to decide as to which of the two or more contesting parties was in possession of the property. The finding on this point by the Sub-Divisional Magistrate in the instant case is not called for because it is admitted by Hans Raj complainant himself and affirmed in the report of the S.H.O. Police Station, Lambi dated February 28, 1979 that he has been in joint possession of the land with his other brothers. Under these circumstances the proceedings started by the Sub Divisional Magistrate u/s 145 of the Code are illegal, misconceived and are liable to be quashed.

So far as the contention of the respondent in the light of judgment in Daulat Ram and other''s case (supra), in the said case, the proceedings were initiated at the behest of respondent Shanti Devi (petitioner in proceedings u/s 145 Cr.P.C.) on the plea of exclusive possession but Daulat Ram and others, petitioners (respondents in proceedings before the trial court) put forward a case of joint possession, in those circumstances, the court held that the mere fact that the other party has set up a case of joint possession in the circumstances is not sufficient to quash proceedings u/s 145 Cr.P.C. In the case at hand, the position is converse because the applicant claimed himself to be joint owner and has not claimed his exclusive possession of the joint land which ousts the jurisdiction of the SDM to initiate proceedings u/s 145 Cr.P.C. This apart, though the petitioner in reply, has denied averments in para 02 of the application but during the course of arguments, counsel for the petitioner has categorically argued that the parties are joint owners in joint possession of the land in question. Under these circumstances, the respondent cannot gain any advantage to his contention from the judgment in Daulat Ram and other''s case (supra). As in the present case, both the parties have admitted themselves to be joint owners in joint possession of the land in question, the observation made by the Hon''ble Supreme Court of India in Parkash Chand Sachdeva''s case (supra) has got no bearing in the present case because in the said case there was a dispute between the parties on the question of possession which is not so in the instant case. In view of what has been discussed hereinabove, proceedings initiated by SDM cannot be allowed to continue and liable to be quashed.

For the aforesaid reasons, the petition is allowed, proceedings u/s 145 Cr.P.C. (Annexure P-3) and order dated 15.11.2013 (Annexure P-1) in regard to appointment of Receiver u/s 146 Cr.P.C. are ordered to be quashed. No order as to costs.