Ramesh Chander vs Sub-Divisional Magistrate, Panipat and anr.

S.S. Grewal,J.

This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) relates to quashment of proceedings under Section 145 of the Code pending before Sub Divisional Magistrate, Panipat, as well as the order passed under Sec. 146 of the Code by the said Magistrate on June 13, 1988.

In brief facts relevant for the disposal of this case are that petitioner No: I claims to be owner in possession of the suit land on the basis of consent decree dated 10th November, 1987 passed by Sub Judge Ist Class, Panipat, in the suit filed by Ramesh Chander petitioner against Kaila Devi. The latter had got that property from her mother Smt. Bohti. Respondent No. 2, his cousin and their sons, whose land surrounded the land in dispute, in order to harm the petitioner and his brothers attacked them on 15th October, 1988 and caused them injuries and a criminal case under Sections 325/323/34 IPC is pending in Court of Judicial Magistrate Ist Class, Panipat. The petitioner filed a suit for grant of permanent injunction on 19101989: and obtained ad interim injunction, on the same day, in the said suit whereby the opposite party was restrained from interfering in possession of the petitioner over the suit land. After receipt of notice of the said suit the opposite party got a suit filed from Partap minor son of Smt. Kaila Devi against his mother and the petitioner and in that suit ad interim injunction was issued by Sub Judge Ist Class, Panipat on 24th October, 1988 whereby both the parties were directed to maintain status quo regarding alienation. of the suit property. Despite the pendency of petitioner''s suit for permanent injunction and by concealment of that act respondent No. 2 and his cousin Kaila brought a suit for injunction and ad interim injunction which stood automatically vacated on 12th January, 1989 because of the noncompliance of requirement of JUDGMENT 39 Rule 3 of the Code of Civil Procedure. The police submitted a calendar under Section 145 of the Code on 23121988. No action was taken at that time but on 3151989 the Sub Divisional Magistrate passed a preliminary order under Section 145 (1) of the Code even though there was no genuine dispute regarding possession, nor there was any apprehension of breach of peace. Another calendar was presented on 1361989 on almost similar facts except with the addition that during the night intervening 8th/9th June, 1989 both the parties were just saved from a very serious conflict and there is grave apprehension of some serious offence. The Sub Divisional Magistrate also passed order of Attachment of the property in dispute under Section 146 of the Code on 2061989 without, sending any notice to the petitioner or his counsel and appointed Naib Tehsildar, Samalkha as Receiver even though the petitioner was in possession of the land in dispute.

Counsel for the parties were heard.

On behalf of the petitioner it was submitted that according to the latest revenue entries including Jamabandi for the year, 198485, copy of mutation concerning the change of ownership of the land in dispute on the basis of Civil Court decree in favour of the petitioner and Khasra Girdawari entries from Kharif 1987 till Kharif 1988, would, clearly indicate that the petitioner is in actual physical possession of the land indispute, and that the Sub Divisional Magistrate had no jurisdiction to proceed under Section 145 of the Code. It was further submitted that since civil suits between the parties are pending regarding the land in dispute, the question of possession and appointment of Receiver too can be adjudicated upon by the civil Court.

Reliance in this respect has been placed on the authority of their lordships of the Supreme Court in Ram Sumer Puri Mahant v. State of. U.P. and others. 1985(1) RCR(Crl.) 278 (SC) : 1985(2) RCR(Crl.) 43 (SC) : AIR 1985 S.C. 472. Undisputedly in that case, in respect of the property in dispute, a suit for possession and injunction was filed wherein the question of title was gone into and the said suit was dismissed and the proceedings under Section 145 of the Code were initiated during the pendency of the appeal. In view of the facts and circumstances of that case, it was observed as under : When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding 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. The facts and circumstances of the present case are entirely different in as much as proceedings under Section 145 of the Code were initiated during the pendency of the civil suits between the parties which are still pending. The afore cited authority in Ram Sumer Puri Mahant''s case (Supra) does not cover the facts of the case in hand and is clearly distinguishable.

On behalf of the respondents reliance was placed on latest authority of the Supreme Court in Jhunamal alias Devandas v. State of Madhya Pradesh and others, AIR 1988 SC 1973, Wherein it was observed as under : It is true that in cases of dispute regarding immoveable property 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, however, 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 decision 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 was further held "that the quashing by the High Court of order passed under Section 145(6) Criminal P.C. merely on the ground that the unsuccessful party had filed civil suit was improper."

This authority in Jhunamal''s case (supra) is also not fully applicable to the facts of the case in hand inasmuch as in the instant case both the proceedings under Section 145 of the Code as well as the civil suits have not been finally decided.

From the perusal of the revenue records in the instant case it is quite apparent that the petitioner claims ownership of the suit property on the basis of consent decree dated 10th November, 1987 whereas part of the land in dispute is also shown to be in possession of respondent No 2 and his brother Kalia as tenants at Will. Under Section 145 of the Code, the Sub Divisional Magistrate is only to adjudicate the question of possession of the parties at a particular point of time which, however, would be subject to final adjudication of the civil Courts. In view of the facts and circumstances of the present case it is quite evident that the dispute is likely to cause breach of peace concerning the land in dispute and the impugned order passed by the Sub Divisional Magistrate, including the one under Section 146 of the Code for appointment of Receiver cannot be said to be illegal or perverse particularly when the civil Courts while granting temporary injunctions have, not specifically considered or decided, as to which particular party is prima facie in actual possession of the land in dispute.

For the foregoing reasons, I do not find any merit in this petition and the same is hereby dismissed. The Sub Divisional Magistrate is, however, directed to dispose of this case expeditiously.