Rattan Singh vs State of Punjab

B.S. Yadav, J.

This is a revision petition against the order dated 26th February, 1982, passed by SubDivisional Magistrate, Rajpura.

According to the allegations of the present petitioner Rattan Singh, Teja Singh respondent No. 2 had agreed to sell 14 kanal 9 marlas of land to him and his brother Gursharan Singh in equal shares for Rs. 13545.00 and had executed an agreement of sale on 30th July, 1980. Teja Singh received Rs. 2,000/ as earnest money and on the same day i.e. 30th July, 1980, he delivered possession of the land to the petitioner and since then he and Gursharan Singh are in possession of this land. The sale deed was stipulated to be executed and registered within one week. On 18th August, 1980. Teja Singh received Rs. 6,000 more as earnest money and the date for execution of sale deed was extended upto 1st July, 1981. However in collusion with respondents Nos. 3 to 5 Teja Singh backed out of the agreement of sale. Thereupon Rattan Singh and his brother Gursharan Singh filed a civil suit for the specific performance of the contract. On 15th June, 1981, the Civil Court passed an interim order ordering the maintenance of status quo regarding possession. Instead of obeying the injunction order, respondents No. 2 to 5 prevailed upon the Station House Officer, Rajpura, who presented a calendar in the Court of SubDivisional Magistrate, Rajpura, for initiating proceedings under section 145 of the Code of Criminal Procedure (hereinafter called the Code). The SubDivisional Magistrate, Rajpura, vide order dated 11th February, 1982, returned the calender on the ground that it had not been proved that there was a dispute between the parties regarding the possession of the land and the dispute was regarding agreement of sale and, therefore, proceedings under section 145 of the Code could not be taken. However, later on the same day the Sub Divisional Magistrate reviewed that order and passed a preliminary order under section 145 of the Code and issued summons to the parties for 24th February, 1982, for filing reply and producing evidence. No notice was served on the petitioner for 24th February, 1982. On 24th February, 1982 the Sub Divisional Magistrate adjourned the case for consideration. On 26th February, 1982, the Sub Divisional Magistrate passed the impugned order. On 16th March, 1982, the receiver ordered that the crops which had been sown by the petitioner, would be sold by auction on 22nd March, 1982. According to the petitioner, orders dated 11th February, 1982 and 26th February, 1982, are illegal and ultravires for the reasons given in para No. 1 on the Grounds of Revision.

The above revision petition was contested by the contesting respondents. Gurdev Singh respondent No. 4 filed an affidavit by way of reply in which it was averred that the petitioner Rattan Singh had concealed true facts which, according to him, are that originally Kapur Singh, father of respondents Nos. 2 to 4, had purchased the land in dispute from the Joint Hindu Family money in the name of Teja Singh respondent. Respondent Nos. 2 to 4 are the owners of this land and they are in its possession and the mutation had been sanctioned in their favour. Respondents Nos. 2 to 4 were getting this land cultivated through one Mohan Singh, tenant. The petitioner started claiming possession of the land and in connivance with the revenue staff get the entries made in his name. When the respondents came to know about the change in the entries in the Khasra Girdawries, an application was filed for correction of these entries and the same is still pending. Teja Singh neither executed any agreement of sale nor he was competent to do so as it was joint property of respondents Nos. 2 to 4. The petitioner has filed a civil suit for possession of the land on the basis of the alleged agreement of sale in which the Civil Court had ordered about maintenance of status quo till 16th July, 1981, subject to the compliance of the provisions of JUDGMENT 39, Rule 3A of the Code of Civil Procedure. In June, 1981, the petitioner alongwith some other persons tried to disturb the possession of Mohan Singh tenant and the matter was reported to the police and entry No. 22 dated 27th June, 1981, was recorded in the daily dairy of the Police Station, Rajpura. The petitioner again tried to disturb the possession of Mohan singh tenant and tried to destroy the paddy crop and gave beating to said Mohan Singh. The matter was against reported to the said police station and report No. 14 dated 20th October, 1981 was recorded in the daily diary. The tenant filed a criminal complaint against the petitioner and that is still pending. As the petitioner had started alleging the possession on the land in dispute which in fact, was with respondents Nos. 2 to 4 through their tenant Mohan Singh, the police presented calendar under section 145 of the Code for preventing breach of peace, to the Sub Divisional Magistrate, Rajpura, who recorded the statement of the Investigating Officer and after going through the record and the evidence available, the said officer passed a preliminary order under section 145 of the Code on 11th February, 1982. It was also alleged that in the garb of the revision petition, the petitioner wants to out and misappropriate the standing crop.

The learned counsel for the petitioner argued that when the calandar under section 145 of the Code was first presented before the Sub Divisional Magistrate on 11th February, 1982, the learned Magistrate had refused to entertain it and had returned it holding that there was no dispute between the parties regarding possession and that the dispute was regarding agreement of sale and that the said officer had further ordered that if there was any apprehension of the breach of peace, the police could take proceedings under section 107 and 151 of the Code and, therefore, when the calandar was again put up before him on the same day, he was not competent to entertain it because it will amount to recalling the earlier order and no provision of the Code allows such review. I am of the opinion that the above argument has no force. When the calandar was first presented it might not be containing full facts. The respondents have find a copy of that calandar and it shows that after it had been returned by the Sub Divisional Magistrate, the Station Hose Officer again presented it with the report that both the parties state their possession over the land in dispute and therefore, proceedings under section 145 of the Code of Criminal Procedure be taken. It was also mentioned in the report that as far as question of breach of peace was concerned, calandar under sections 107/151 of the Code had already been sent to the Court. I am of the opinion that in the present case the entertainment of the calandar by the Sub Divisional Magistrate, after first returning it, will not amount to review of the earlier order. When the matter was clarified by the Station House Officer in his report, the Sub Divisional Magistrate was entitled to entertain it.

The learned counsel for the petitioner next argued that in the suit pending in the Civil Court the learned Subordinate Judge had passed the following order on 15th June, 1981 :

"Heard. Notice to the other party for 16th July, 1981. Till then status quo subject to the compliance of JUDGMENT 59 Rule 3A of the Code of Criminal Procedure."

The learned counsel for the petitioner also draw may attention to the entries in Khasra Girdawari which show that in Kharief, 1980 and Rabi, Rattan Singh and Gursharan Singh have been recorded as owners. The learned counsel for the petitioner argued that the said suit had to be filed because Teja Singh, even after receipt of the more earnest money on 18th August, 1981, tried to wriggle out of the agreement of sale and set up his brothers to raise the dispute. He further urged that when the matter was pending in the Civil Court, the learned Sub Divisional Magistrate ought not have entertained the calandar under section 156 of the Code. In support of his contention he has cited Kura and another v. Angrez Singh, 1974 C.L.R. 331. That ruling no doubt supports the contention of the learned counsel for the petitioner that when civil suit regarding possession of the land is pending adjudication in a Civil Court, provisions of section 145 of the Code cannot be invoked and in case there is apprehension of breach of the peace between the parties, the proper course for the Magistrate is to initiate proceedings under section 107 of the Code. However, as divergent views had been expressed by this Court on the above question, in Mohinder Singh v. Shri Dilbagh Rai, 1976 P.L.R. 803 the matter was referred to a Division Bench wherein it was remarked :

"The third type of case, that is, maintenance of status quo during the pendancy of the civil suit is a situation in which a civil court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxisty of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace. If they act in such circumstances and the Magistrate attaches the subject matter of the dispute under section 145, Criminal Procedure Code then he would be acting to defend th maintenance of the status quo as ordered by the Civil Court."

From the above observations it is clear that inspite of the pendancy of the dispute in the Civil Court, the proceedings under section 145 of the Code can be instituted by the police in appropriate cases.

The learned counsel for the petitioner next argued that the impugned order had been passed by the Magistrate without first embarking on an enquiry as contemplated under section 145 of the Code. In the present case it appears that before passing the impugned order the learned Sub Divisional Magistrate had recorded the statement of the Station House Officer on 26th February, 1982. Copy of that statement is at page 71 of this file and its translation is at page 73. That statement reads as follows :

"Stated that the report which has been made title as State v. Rattan Singh etc. and Teja Singh etc, residents of Gurditpura under section 145 Criminal Procedure Code that has been made after investigation at the spot and after due satisfaction. There is immediate danger to the peace because of the possession dispute among the parties and the Girdawari is disputed one and the dispute/case in this respect is pending before the Assistant Collector, IInd Grade, Rajpura. The land in dispute is necessary to be taken in possession of State. Copies of DDR No. 14 dated 28.10.81 and No. 22 dated 27.6.81 were not with it. I have brought photostat copies of the same, which thereby submit."

On 26th February, 1982 the learned Magistrate passed the following order :

"Preliminary order U/s 145 Cr.P.C.

Whereas from the police report made by S.H.O. P.S. Rajpura dated 11th Feb., 1982 and statement of the S.H.O. P.S. Rajpura, recorded on 26th February, 1982, accompanied by photostat copies of DR No. 22. Dated 27th June, 1981 and No. 14 dated 28th October, 1981 that a dispute likely to cause a breach of the peace exists concerning land measuring 14 Kanals 9 Marlas, comprising in share Nos. 17/12/1, (49), 13/2(49), 14/2(49), 15/1/2(12), situated in village Kehargarh, P.S. Rajpura, between party No. 1 and party No. 2. I am satisfied that a dispute is likely to case a breach of the peace between the parties and it in a case of emergency. I, therefore, attach the said land and the Naib Tehsildar, Rajpura is appointed its receiver, who will manage the land and deposit the necessary amount of lease money in the Government Treasury, after deducting 10% commission. I also require the parties to attend this Court in person or by pleader on 15.3.1982, and to put in writing statement of their respective claims as respects the fact of actual possession of the subject of dispute.

Issued today the 26th February, 1982, under my hand and seal of the Court.

From the above order it is clear that the learned Magistrate considered the case before him as one of emergency and, therefore, passed the order in question. I do not find any infirmity in the said order.

The learned counsel for the respondents further argued that the present order amounts to interlocutory order and, therefore, no revision lies. He has cited Shahu alias Sita Ram and others v. State of Haryana through S.D.M. Narwana and others 1981 C.C. Cases 305 (P&H) which was decided by me. In that case an order particularly of similar nature was challenged. I had held that the order in question was of interlocutory nature and no revision lay against it.

However, in the present case, I am inclined to exercise the power vested in this Court under 482 of the Code for preventing abuse of the process of the Court and to secure the ends of justice. The petitioners case is that he and Gursharan Singh had entered into an agreement of sale with Teja Singh and on the occasion paid Rs. 2000/ and on another Rs. 6000/ as earnest money against the sale consideration of Rs. 13,345/. It is also the case of the petitioner that on the date the agreement of sale was executed by Teja Singh, he had delivered the possession of the disputed land to him and his brother Gursharan Singh. The petitioner has also filed copy of the Khasra Girdawari enteries. As noticed earlier, in Kharief, 1980 and Rabi 1981 Rattan Singh and his brother Gursharan Singh are recorded in possession of the land in question. When Teja Singh resied from the agreement, Rattan Singh and Gursharan Singh had filed the suit and on 15h June, 1981 obtained in order about status quo regarding possession. Gurdev Singh respondent in his affidavit has not denied the fact that Teja Singh is recorded as owner of the land. His contention is that the property was purchased in Teja Singh''s name from the Joint Hindu Family Fund and, therefore, it belongs to all the brothers. It is to be noted that Teja Singh has not filed any affidavit to deny the contention of the petitioner that he (i.e. Teja Singh) had entered into an agreement of sale and had received earnest money and had delivered possession. Copy of the daily diary entry No. 14 dated 28th October, 1981 has been filed by the respondent and it shows that a dispute had arisen before the Patwari who had gone to make the entries in Khasra Girdawari for Kharif, 1981. Mohan Singh with whom the dispute is said to have taken place at that time, has not filed any affidavit to show that Kharif, 1981 crop was sown by him. The calandar for initiating proceedings under section 145 of the Code was presented by the police long after the filing of the suit by Rattan Singh and Gursharan Singh as well as after the incident of 28th October, 1981. The petitioner appears to be an aggrieved party and, therefore, he had come in revision to this Court when the land was ordered to be attached by the SubDivisional Magistrate and Receiver was appointed.

To prevent the breach of peace, the police had already instituted proceedings under section 107 of the Code against both the parties. Therefore, considering the circumstances of the case, I, in the exercise of inherent powers of this Court, quash the order dated 26th February, 1982 passed by the Sub Divisional Magistrate. The revision petition is disposed of accordingly.