Ram Karan vs State of Haryana

R.L. Anand, J.

Sarvshri Ram Karan, Prithi, Het Ram and Sahib Ram filed the present petition under Section 482 of the Code of Criminal Procedure for quashing the Kalandara filed under Section 145 of the Code of Criminal Procedure and passing of the order dated 20.9.1996 passed by Sub Divisional Magistrate, Siwani against the State of Haryana and others by making one preliminary plea that reading of the Kalandara and the impugned order is nothing but an abuse of the process of the Court because of the admitted stand of the parties that they are in joint possession of the land regarding which proceedings under Section 145 of the Code of Criminal Procedure were initiated. This stand of the petitioners is being refuted by the private respondents that parties are not in joint possession, rather the petitioners under the garb of certain sale deed, want to dispossess the private respondents so that they may be able to get better quality of land from the hands of the private respondents. However, attention of this Court has been invited to the Kalandara Annexure P2 filed by the S.H.O., Police Station, Siwani. The material allegation of the Kalandara can be translated in the following manner :

"The land is joint and both the parties are interested to take good piece of land. Therefore, both the parties should be dispossessed after giving notice and receiver should be appointed and proceedings should be initiated under Section 145 of the Code of Criminal Procedure."

A perusal of the order of the Sub Divisional Magistrate also indicates that the case before him of both the parties was ''both parties are in possession of the land and the land is shared by both the parties''. The finding which was given by the learned Sub Divisional Magistrate is as follows :

"I have heard learned counsel argument to a length and read the kalendra carefully. After keeping all the facts and justice in mind, I am in the conclusion that due to land in dispute there is a tension between both the parties. In these circumstances, both the parties can commit grave crime for water/land, because for the possession of this land cases under sections 323/324/34 IPC and under sections 107/151 are pending in the Courts between both the parties. Land is Mutnaza Mustska. Land is not partitioned and each sharer is owner of his share in possession. After hearing both the parties to a length and going through kalendra, keeping all facts and justice in mind land Mutnaza Khewat No. 171 Khatauni No. 466, Jamabandi 199192 year village Barwa Tehsil Siwani, Mukbaze 144/17(80), 18(80), 4(80), 19(80), 20(80), 22(80), 23(80), 126(80), 2(80), 3(80), 4(80), 7(80), 8(80), 9(80), 10(80), total 70 kanals 8 marla and khewat No. 420 Khatauni No. 1179 jamabandi for year 199192 Mutnaze No. 78/16/2(110), 17/1(315), 24/1(512), 28/1(24), Mutnaza No. 11/4(80), 7(80), 14(80), 15(80), total 53 kanal 1 marla measuring total is 243 kanal 9 marla at vill. Barwa, Tehsil Siwani District Bhiwani is proceeded under 145 Cr.P.C. and under Section 146(1) Cr.P.C. As both the parties are tensed for water/possession on total land 243 kanal 9 marlas, I order for attachment and till the decision of kalendra I appoint Tehsildar Siwani as receiver and order that on the above said land khewat and Mutraza possession be taken at spot. Copy of this order to be sent to Tehsildar Siwani/SHO Siwani for necessary action. Case to be brought for evidence and proof of Ist party on dated 30.9.1996."

The combined perusal of the allegations of the kalendra and the order of the learned Magistrate would show in equivocal terms that the possession of the parties on the land was treated as joint and it is admitted fact that this land has not been partitioned by actual metes and bounds. None of the parties has approached under Section 111 of the Punjab Land Revenue Act as applicable to the State of Haryana.

Learned counsel for the petitioner has invited my attention to the finding reported as Dhanvir Singh v. State of Punjab, 1983 RCR 538 wherein it was held that it is difficult to conceive that a dispute with regard to people in joint possession of property would be a dispute coverable under Section 145 of the Code of Criminal Procedure. But yet it may be a dispute leading to breach of peace. The remedy in that regard would be proceedings under Section 107 of the Code of Criminal Procedure. A perusal of the order of the learned Magistrate also shows that there is a criminal litigation between the parties and they had already resorted to the proceedings under Section 107/145 of the Code of Criminal Procedure. Present was an attempt on the part of the police at the instance of the private respondents so as to deprive the petitioner from the course of the land. The private respondents had approached to the police for the initiation of the present proceedings under Section 145 of the Code of Criminal Procedure and the learned Sub Divisional Magistrate has also fallen prey to the action of the police and such actions either on the part of the police or on the part of the Sub Divisional Magistrate cannot be endorsed by this Court and thus becomes a fit case where provisions of Section 482 of the Criminal Procedure Code should be invoked.

Learned counsel for the respondents has placed reliance on authority of Kapildev v. Ramdahin, AIR 1953 Patna 363. The facts of the cited authority are not applicable to the facts in hand. His Lordship of the Patna High Court was considering the nature of the possession visavis coparcener. It is a settled principle of law that coparcener gets an interest in the ancestral property by birth. His Lordship never considered in this authority what would be the effect of Section 145 of the Code of Criminal Procedure, if the police on the joint possession being joint khata of the parties decides to initiate the proceedings under Section 145 of the Code of Criminal Procedure. Even otherwise there is a chain of authorities of our High Court which affirm the view taken in Dhanvir Singh''s case (supra). Resultantly, the present petition is hereby allowed. Kalandra and the impugned order are hereby quashed with the observation that it is open for either of the parties to approach the Revenue Authorities. Petition is disposed of.