S. Gurdev Singh vs State of U.P. and Others

K.L. Sharma, J.—This is a writ petition under Article 226 of the Constitution of India directed against an order dated 1.12.94 passed by the learned Sessions Judge Dehradun and against the orders dated 2.8.1994 and 6.8.1994 passed by the S.D.M. Mussoorie under Sections 145(1) and 146, Code of Criminal Procedure.

I have heard Sri. A.K. Gaur and Senior Advocate Shri R.K. Jain learned Counsel for the Petitioner, as well as learned Standing Counsel and Sri. Tarun Verma learned Counsel for the Respondents Nos. 4 to 6 and also perused the material brought on record.

This is unfortunately a dispute between the son and the father, mother and the grand-son. There is one building known as Dieu Donee Barloganj, Mussoorie within the district of Dehradun. According to the Petitioner, this building belonged to and was in his possession. His son Tarlochan Singh Respondent No. 5 filed a civil suit No. 43 of 1991 in the Court of Sub-Judge First Class, Sangroor seeking a declaration that he is owner of the said property as well as four shops situated at Sangroor. He obtained an ex parte decree by playing a fraud on the Petitioner. The Respondent No. 1 invited the Petitioner to come and stay with him at Denmark and the Petitioner went to Denmark and stayed there. During his absence, the Petitioner''s wife and his younger son stayed in the building at Mussoorie. His son Tarlochan Singh filed another suit in the Court of Sub-Judge Sangroor and sought an injunction against his mother restraining her from interfering with the house but that suit is still pending. The Petitioner also filed a civil suit in the Civil Court at Dehradun claiming a declaration of his title and possession and injunction but that suit Is still pending and no order could be obtained due to unrest prevalent in entire Uttarakhand Division. Bhagwant Singh second son-now Respondent No. 6 also filed a 4th civil suit No. 149 of 1994 in respect of the same property in the Court of Senior Sub-Judge, Sangroor for declaration that they are owner and in possession in the four shops at Sangroor and Kothi at Mussoorie. He also challenged in that suit that the decree dated 19.3.1991 in original suit No. 43 of 1994 is null and void on account of fraud and misrepresentation. He also moved an application for interim injunction restraining Tarlochan Singh, Gurdev Singh-Petitioner, Narendra Kaur, Virendra Kaur and Jagdeep Singh from alienating the properties mentioned in the suit. On 19.4.1994 the Senior Sub-Judge Sangroor passed an interim order directing both parties to maintain status quo regarding the possession of the suit property. The Petitioner filed a separate Civil Suit No. 327 of 1994 seeking a declaration that he is lawful owner and In possession of four shops and the house at Mussoorie and the Sub-Judge First Class Sangroor passed an interim order restraining the Defendant Respondent from dispossessing the Petitioner and directed the parties to maintain status quo regarding possession over the house in dispute. But the Respondents approached the police authorities of Dehradun and the police submitted a report to the S.D.M. Mussoorie, who was pleased to pass an order on 2.7.1994 issuing notice u/s 145(1), Code of Criminal Procedure The Sub-Divisional Magistrate also passed an order of attachment u/s 146(1), Code of Criminal Procedure A Criminal revision was filed challenging both these orders but the learned Sessions Judge, Dehradun dismissed the revision on 1.12.1994.

Learned Counsel for the Petitioner has submitted that in view of the pendency of the civil suit and grant of interim stay order therein, the learned S.D.M. was not legally justified to proceed u/s 145(1) and to make attachment u/s 146(1) Code of Criminal Procedure It has been brought on record by the Petitioner that in civil suit No. 327 of 1994 filed in the Court of Sub-Judge First Class Sangroor, an interim Injunction order was passed on 19.8.1994 which was made effective till 9.9.1994. The S.H.O. Mussoorie submitted a report to the S.D.M. Mussoorie on 26.7.1994 that apprehension of breach of peace relating to the possession of Kothi known as Dieu Donee Barloganj Mussoorie exists, and he recommended that action u/s 145, Code of Criminal Procedure be taken. On the receipt of the police report the learned Magistrate was satisfied that apprehension of breach of peace exists and he passed a preliminary order u/s 145(1) fixing 11.8.1994 a date of appearance of the parties. He also passed another order of attachment u/s 146(1) Code of Criminal Procedure as a measure of emergency on the ground of the apprehension of breach of peace. Instead of approaching the Court of the S.D.M. Mussoorie the Petitioner filed a criminal revision against these interlocutory orders before the Sessions Judge, Dehradun and only in that revision he mentioned pendency of the civil suit. The learned Sessions Judge referred to the dispute of ownership and possession to the property between the father and the son and their close relations and found that there was a decree and cross suit for its cancellation and observed that the parties were asserting their rights of ownership and possession in respect of the building at Mussoorie. The learned Magistrate was satisfied from the police report that there exists imminent apprehension of breach of peace between the parents and the children and emergency existed to pass an order of preliminary attachment. The learned Sessions Judge found that the impugned orders were of interlocutory nature and no revision was legally maintainable. He did not find any illegality or infirmity in the impugned order of attachment and preliminary orders and consequently he dismissed the revision. In my opinion also the Petitioner could file a written statement and his evidence before the learned S.D.M. in response to the notice u/s 145(1), Code of Criminal Procedure and could get the dispute decided by the learned S.D.M., so that the order of attachment could be withdrawn by the learned S.D.M. Moreover, I find that the interim injunction order which was passed by the Sub-Judge First Class Sangroor was made effective only upto 9.9.1994. There is nothing on record to show whether this interim prohibitory order was made operative after 9.9.1994 and whether any other decision has been rendered by the Sub-Judge Sangroor in the pending civil suit.

Learned Counsel for the Petitioner has invited attention to a decision of the Hon''ble Supreme Court in the case of Dharampal v. Smt. Ram Shree JT 1993 (1) SC 61. It has been held that the Magistrate can pass orders under Sections 145(1) and 146(1) Code of Criminal Procedure when he is satisfied that there exists any likelihood of breach of peace with regard to the possession of the property in dispute, but, this power ceases to exist when the competent Court determines the rights of the parties with respect to the same property in dispute. This determination can also be made by the competent Court at interim stage tentatively and if the competent Court passes any interim order, the order of attachment passed by the Magistrate comes to an end, otherwise there will be an inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate.

In the present case, the Sub-Judge Sangroor has passed a limited order of restraining the opposite parties-Defendants from alienating the property in dispute and for maintaining the status quo in relation to possession. The order restraining the transfer of the disputed property does not remove the apprehension of and is not relevant to, breach of peace but the order of maintaining status quo in regard to possession is relevant. The nature of the order directing the parties to maintain status quo is so vague that it leaves the scope to the fighting party to use his muscle power and to get into possession of the property In order to be protected on the ground that the status quo is being maintained. In this effort of the parties, apprehension of breach of peace is most likely and if the Executive Magistrate sits silently even on the receipt of the police report that there is a serious likelihood of breach of peace, the Magistrate can be accused of abdicating his statutory duty of maintaining peace, law and order in view of the vagueness of the order of status quo regarding possession of the disputed property. I am of the opinion that the learned S.D.M. was justified in the light of the police report to record a finding that there is a likelihood of apprehension of breach of peace and therefore he was Justified to pass the interim orders under Sections 145(1) and 146(1) Code of Criminal Procedure This order of attachment will of course come to an end as soon as the competent Civil Court passes a clear cut order regarding possession of the disputed property or makes an order of attachment by appointing a Receiver of the disputed property. Therefore, in my opinion, there is neither illegality nor infirmity in the impugned order of attachment passed by the learned Magistrate when the Sub-Judge Sangroor was not himself clear to make a specific direction regarding possession of any party to the disputed property, and to make further orders to be effective after 9.9.1994 since the Petitioner has not submitted any other order passed by the Sub-Judge Sangroor in that suit, it is implied that no further order relating to the possession of the property or attachment of the property and appointment of the Receiver thereto has been passed by the Sub Judge, Sangroor in these circumstances, the impugned orders will remain effective till the Civil Court passes clear and specific orders in regard to the disputed property.

The learned Counsel for contesting opposite parties has also invited attention to some of the decisions of this Court in the case of Bore Prasad v. L.P. Awasthi (23) 1991 ) ACC 315 Rajoo v. State of U.P. (31) 1994 ACC 537 and Raj Bahadur v. State of U.P.(31) 1994 ACC 654. In all these cases, it has been held that the impugned orders passed by the Magistrate in the proceedings u/s 145 or u/s 146, Code of Criminal Procedure will remain effective so far as the competent Civil Court makes an adjudication or passes an Interim order which clearly specifies the possession of either of the parties and restrains the other party from interferring with the peaceful possession, but if only an order of status quo has been passed without specifying the possession of either of the parties, the learned Magistrate will continue to have jurisdiction to pass orders. If the apprehension of breach of peace exists despite the status quo order, then either the Civil Court solves the problem of possession or the Executive Magistrate will have to step in for removing the likelihood of breach of peace in public interest. In the present case also, the Sub-Judge Sangroor has passed an order of maintaining status quo in regard to possession without specifying the possession of either of the parties and without restraining the other party from dispossessing particular party and further this order of status quo has been passed only for a limited period upto 9.9.1994. Therefore, at this stage, interference with the impugned orders passed by the learned Magistrate is not at all justified. If the property in dispute continues to be under attachment, the parties who are related to each other like father, mother and sons, will remain away from the property till their disputes relating to rights and possession of the property in question are determined by a competent Court.

No Interference is called for with the order passed by the learned Sessions Judge, Dehradun on 1.12.1994 while dismissing the revision against the orders passed by the S.D.M. Mussoorie on 2.8.1994 and 6.8.1994.

The writ petition is therefore dismissed.