Santosh vs State of M.P. and Another

P.K. Jaiswal, J.—This is a petition u/s 482 of Code of Criminal Procedure, for quashment of order dated 14.7.08, passed by District and Sessions Judge, Indore in Criminal Revision No. 745/09 and attachment order dated 14.7.09, passed by Sub Divisional Officer and Executive Magistrate, Sanyogitaganj area, Indore in Case No. 182/09 in a proceedings u/s 145 of Code of Criminal Procedure.

It is not a matter of any dispute between the parties that the Defendant and his wife are the co-sharer of the suit land. However, the Plaintiff claims exclusive possession of the suit property on the basis of an alleged agreement shown to have been executed by the wife of non-applicant No. 2 - Defendant Alok Garg. He claims that after the said agreement he had entered into the actual exclusive possession of the land in question.

The non-applicant No. 2/Defendant contested the claim made by the applicant-Plaintiff and his exclusive possession He relied upon an order of diversion passed qua the land in question by the competent authority and later on permission granted to him for raising construction The civil suit was filed by the Plaintiff-applicant on 15.4.09. On 5.5.09 status quo order was passed by the trial Court. Later on said status quo order was vacated and application for grant of temporary injunction was rejected by the trial Court on 23.6.09. The applicant challenged the said order by filing miscellaneous appeal, which was dismissed on 20.1.10.

The two Courts, noticing the aforesaid document and the material available on record had held that the applicant-Plaintiff had failed to indicate his actual possession over the land in question The applicant challenged the said orders by filing writ petition under Article 227 of the Constitution of India. The said writ petition (W.P. No. 1208/2010) was dismissed by the Division Bench of this Court by holding that the Plaintiff had failed, prima facie, to prove his actual physical possession over the land in question.

Prior to the filing of suit the non-applicant No. 2 (party No. 2) lodged a report on 11.4.09 before the Police Station Palasia, Indore, to the effect that the applicant is trying to forcibly occupy the disputed property and the said dispute may cause breach of peace between the parties. The said Police Station submitted its repeort/Istgasa u/s 145 of Code of Criminal Procedure on 18.4.09. The learned Magistrate considering the said ''Istgasa'' registered a case and passed an order dated 14.7.09 and on 6.8.09 u/s 145 of Code of Criminal Procedure and directed the applicant not to interfere over the land in question i.e., 0.367 hectares of Survey Nos. 247/7, 260/1 and 261/1 and the applicant was restrained from interfering with the possession of the non-applicant No. 2, till the matter is decided by the competent Court.

Learned Counsel for the applicant drew my attention to the decision of the Apex Court in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, and submitted that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a preliminary criminal proceedings u/s 145 of Code of Criminal Procedure would not be justified. He submitted that 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 the possession is being examined by the civil court and the parties are in a position to approach the civil court for interim orders, such an order or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not the interest of the parties nor should public time be allowed to be wasted over the meaningless litigation. With the aforesaid, it is submitted by the learned Counsel for the applicant that criminal proceedings pending before the Sub Divisional Magistrate be dropped and the impugned orders passed by the Courts below be quashed.

Shri Ajay Mishra, learned Counsel for the non-applicant No. 2 drew my attention to the orders passed by civil court as well as by this Court and submitted that the courts below have found that the non-applicant No. 2 was not in possession of the property and, therefore, the writ petition filed by the applicant was dismissed and the applicant had failed to prove his actual possession over the land in question and the dispute between the parties were likely to cause breach of peace and, therefore, he initiated a proceedings u/s 145 of Code of Criminal Procedure He further submits that the order passed by the Apex Court in the case of Ram Sumer Puri Mahant''s case (supra)has been totally misunderstood by the learned Counsel for the applicant. It is further submitted that in that case, a title suit for the possession and injunction in respect of certain property was instituted before the civil court. The civil suit was dismissed on February 28, 1981 and after dismissal of the civil suit litigation, proceedings u/s 145 of Code of Criminal Procedure were initiated with regard to the same property and in that proceedings, the Magistrate passed a preliminary order u/s 145(1) of Code of Criminal Procedure and also attached the property and, therefore, the Apex Court has held that multiplicity of litigation is not in the interest of parties nor should public time be allowed to be wasted over meaningless litigation and quashed the order of the learned Magistrate, passed in that case. The said case was late on considered by the Apex Court in the case of Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, and gave the following dictum in paragraph 7, which reads as under:"

We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer''s case. The ratio of the said decision is that 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 mean that a concluded order u/s 145 Code of Criminal Procedure 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 u/s 145 Code of Criminal Procedure 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 is well settled that the Court, while dealing with a proceedings u/s 145 of Code of Criminal Procedure is mainly concerned with possession of the property in dispute on the date of preliminary order and dispossession, if any, within two months prior to that date, the Court is not required to decide either title to the property or right of the possessions of the same. The question for determination before this Court in the present petition is one relating to the validity or otherwise of the order passed by the learned Sub Divisional Magistrate u/s 145 of Code of Criminal Procedure and the order passed by the Revisional Court.

On perusal of the impugned order it is not in dispute that the non-applicant No. 2 is in possession of the property and prior to the date of filing of the suit he was in possession of the property. The injunction application filed by the applicant was dismissed on 23.6.09. As per finding recorded by the Courts below the non-applicant No. 2 is in possession over the property in question and the applicant made attempt to forcibly occupy disputed property and there being an apprehension of breach of peace and, therefore, proceedings u/s 145 of Code of Criminal Procedure was initiated y the non-applicant No. 2 and in view of the law laid down by the Apex Court in the case of Jhunamal @ Devandas (supra) the said proceedings is maintainable. Mere pendency of the civil suit will not ipso facto operate bar to the proceedings u/s 145 of Code of Criminal Procedure by the Magistrate.

In view of the above, I do not see any justification to interfere with the impugned order passed by the learned Sub Divisional Magistrate. I do not see any force in the present petition. It is hereby dismissed.