Ram Partap vs State of Haryana

R.L. Anand, J.

Nobody has given appearance on behalf of respondent No. 2. Even the reply has not been filed on behalf of respondent No. 2.

Present petition under Section 482 Cr.P.C. is being disposed of with assistance rendered by the learned counsel for petitioner and respondents No. 1 and 3. Petitioner Ram Partap has prayed for the quashment of Calendera filed under Section 145 Cr.P.C. dated 10.7.1995, which was filed by SHO, Police Station Ding in the Court of Sub Divisional Magistrate, Sirsa. Prayer has also been made for the quashment of order dated 14.11.1995 passed by the said Magistrate under Section 146(1) Cr.P.C.

The case of the petitioner is that one Smt. Kishni was owner in possession of the land measuring 188 kanals 4 marlas as mentioned in para No. 1 of the petitioner. Said Kishni died and mutation No. 2015 of inheritance was entered and sanctioned in favour of her legal heirs namely Mehar Singh, Randhir Singh, Gulzari Lal, Ram Murti and Chhotu Ram. The aforesaid heirs of Kishni who became owner by way of inheritance, suffered a decree dated 11.1.1991 in favour of the petitioner. On the basis of this decree mutation No. 2027 was also entered and sanctioned in favour of the petitioner. In the revenue record also, the petitioner was shown in possession of the property over the land in dispute. It is alleged by the petitioner that respondent No. 2 Lekh Ram though his real brother did not like the mutation in favour of the petitioner and he filed a suit for injunction in the Court of Addl. Senior Sub Judge, Sirsa titled Lekh Ram v. Ram Partap. Along with the suit, he filed an application under JUDGMENT 39 Rules 1 and 2 CPC praying that during the pendency of the suit his possession over the suit land may not be disturbed. This suit was filed on 24.5.1994. The Civil court did not allow the application of respondent No. 2 under JUDGMENT 39 Rules 1 and 2 CPC. On the contrary, the petitioner filed a suit for permanent injunction on 27.8.1994 against respondent No. 2 and prayed that during the pendency of the suit his possession should not be disturbed. Alongwith the suit he filed an application under JUDGMENT 39 Rules 1 and 2 CPC and ad interim injunction was granted on 14.9.1994. According to the petitioner it is established by the Civil Court that he was prima facie in possession of the suit land and in spite of that respondent No. 2 with the connivance of SHO, Police Station Ding manipulated proceedings under Section 145 Cr.P.C. in which orders under Section 146(1) Cr.P.C. were also passed.

The point for determination in this case is that once the finding of possession is in favour of the petitioner as averred by him, whether under the garb of proceedings under Section 145 read with section 146 Cr.P.C. such posession can be disturbed or not. The second point will be that when there is a dispute regarding the breach of peace only, whether such type of disputes can be converted into proceedings under section 145 Cr.P.C. The answer of this Court is in the negative. In the present case, the injunction order was already in favour of the petitioner. The SHO ought to have respected that order and by resorting the provisions under Section 145 Cr.P.C. he has abused his powers which tantamounts to the abuse of the process of law. Learned counsel for the petitioner has invited my attention to a citation 1987(1) RCR and has even gone to the extent by urging that in the said case the order passed by the Civil Court was for status quo. This authority may not be very helpful to the learned counsel for the petitioner because status quo order is no order in the eyes of law. By such orders, the Civil Court only directs the parties to keep the things as it was on the date of the passing of the order. Certainly by passing these orders, the Civil Court does not adjudicate the point of possession, however, in the present case respondent No. 2 failed in the application under JUDGMENT 39 Rules 1 and 2 CPC. On the contrary, the application under JUDGMENT 39 Rules 1 and 2 CPC filed by the petitioner was allowed giving prima facie finding in his favour that on the date of the institution of the suit he was in possession. There is not an iota of allegations that plaintiff''s possession was disturbed on the date of the filing of the Calendera. If respondent No. 2 wants to set its course with the petitioner he could have resorted to his remedies elsewhere but his getting assistance from the SHO was unwarranted and cannot be encouraged.

Resultantly, the present petition is hereby allowed by quashing the Calandera dated 10.7.1995 and the order dated 14.11.1995 passed under Section 146(1) Cr.P.C. and directions are given to respondent No. 3 not to proceed further. The receiver will also not take the possession in pursuance of the orders of Sub Divisional Magistrate.