Sarwan Singh vs Sub Divisional Magistrate, Ferozepur

Dr. (Mrs.) Sarojnei Saksena, J.

The only challenge in this Crl. Misc. is whether the proceedings under section 145(1) of the Code of Criminal Procedure (in short, the Code) are properly initiated and whether order passed under section 146(1) is a legal and valid order in the facts and circumstances of the case ?

Skeletal facts of the case are that petitioners Swaran Singh and Pritam Kaur have averred that they have purchased the suit land from the attorney of Farj and vide sale deed dated June 23, 1993, and they are in possession of the disputed land. The respondents'' case is that they have purchased the suit land from Farj and himself vide registered sale deed dated May 4, 1994, and they are in possession of the disputed land. Both the parties have filed civil suits. The petitioners have filed civil Suit No. 681I of 1994, which is pending in the court of Mr. M.P. Singh, Sub Judge IInd Class, Ferozepur, against Baldev Singh and Avtar Singh for declaration with consequential relief of permanent injunction, while Baldev Singh has filed civil suit against Farj and others for declaration and permanent injunction. Since both the parties are claiming that they are in possession of the disputed land, Mr. Bhupinder Singh, Inspector, Police Station Sadar, Ferozepur, submitted Kalendra Annexure P3 under section 145 of the Code stating that both the parties are claiming ownership and possession of the disputed land. Baldev Singh and Balbir Singh are maintaining that Mehar Singh prepared fictitious power of attorney in favour of Swaran Singh and Pritam Kaur and executed sale deed of the disputed land in their favour, while they have purchased the property from the owner Farj and himself. Both the parties have applied for mutation in their favour. In Baldev Singh''s suit status quo order has been passed by the Civil Court. Thus, in the Kalendra it is reiterated that since both the parties are claiming possession over the suit land, there is a dispute about this land because of which there can be apprehension of breach of peace. Hence parties be summoned to decide about the real ownership of the land.

On the basis of this Kalendra the learned Sub Divisional Magistrate passed the impugned order Annexure P4 under section 145(1) of the Code holding that he is satisfied from the police Kalendra and the documents attached with it that there is dispute regarding possession of the disputed land mentioned therein. He directed both the parties to appear in his court on March 30, 1995, personally or through counsel along with affidavits, documentary evidence as well as oral in support of their claims. Parties appeared before him and submitted their claims and documents, whereupon the learned Sub Divisional Magistrate passed the order Annexure P5 under section 146(1) of the Code, holding that there is danger of breach of peace at any time between the parties regarding possession. Therefore, keeping this fact in view the Naib Tehsildar, Ferozepur, is appointed as receiver. He is ordered to take possession of the disputed land.

The petitioners'' learned counsel submitted that it is evident from the Kalendra itself that there is a dispute about the ownership of the disputed land. There is no dispute with regard to the possession of the disputed land. They have purchased the property earlier in point of time. Later if any sale deed is executed by Farj and in favour of the respondents, that will not deprive them of the rights which they have acquired under the sale deed executed by the attorney of Farj and in their favour. According to him, the learned Magistrate fell into an error in passing order under section 146(1) of the Code, when the Civil Court has already passed an order of maintaining status quo.

The respondents'' learned counsel, supporting the impugned orders, contended that since both the parties are claiming ownership and possession over the disputed land, the learned Sub Divisional Magistrate has rightly passed the order under sections 145(1) and 146(1) of the Code. There is apprehension of breach of peace. The SubDivisional Magistrate has passed order under section 146(1) of the Code only to protect the order passed by the Civil Court of maintaining status quo. No party can be allowed to forcibly take possession or dispossess the party in possession of the disputed land. He relied on various authorities.

In Ramesh Chander v. S.D.M. Panipat, 1990(1) RCR 152 it is held that when civil proceedings regarding possession of land are pending, criminal proceedings under section 145/146 of the Code are competent if there is no decision of the Civil Court as to which party was prima facie in actual possession of the land in dispute. Under section 145 of the Code the Court is only to adjudicate question of possession of parties at a particular point of time, which, however, would be subject to final adjudication of Civil Court.

In Ram Pal v. Harish Chander, 1987(2) RCR 65 it is observed that where there is dispute over possession of land and Civil court has passed statuas quo order, parallel criminal proceedings under section 145 of the Code with regard to the same land are not barred during the pendency of the Civil Court.

In Mohinder Singh v. Dilbagh Rai, 1976 PLR 803, a Division of this Court has held that the Magistrate has jurisdiction to continue proceedings under section 145 of the Code irrespective of the pendency of the cases between the same parties about the same subject matter and in spite of the ad interim orders passed by the Civil Court, the jurisdiction of the criminal Court is not barred. Section 145 is a beneficial section enacted with the express object of preserving the peace. For the attainment of this object emergency provision for attaching the subject matter of dispute has been provided in it. Under this section, the criminal court can only pass a temporary order and the rights of the parties are, in fact, to be settled by the Civil Courts.

In Jhunamal v. State of Madhya Pradesh, AIR 1988 SC 1973 the Apex Court has held that where there is dispute regarding immoveable property and civil suit is pending, power under section 145 of the Code is not to be exercised. However, the order passed under section 145 cannot be set at naught only because unsuccessful party has approached Civil Court, which is not the case here.

In Jeet Singh v. S.D.M., Abohar, 1993(3) RCR 750 it is held that where there is dispute over possession of land and civil and criminal proceedings are pending, temporary injunction is granted by the Civil Court but vacated by the Sessions Judge. The proceedings under section 145 and 146 are rightly initiated and the S.D.M. rightly attached the land and appointed a receiver.

In Smt. Jawali v. State of Punjab, 1985(2) RCR 483 it is held that where there is dispute over possession of land, hence Civil Court passed order of status quo without deciding the question of possession, proceedings before the criminal Court under section 145 of the Code regarding the same land are maintainable.

The petitioners'' counsel has also relied on various authorities, which are discussed herein.

In Jasbir Singh v. State of Haryana, 1997(1) RCR 573 a Single Bench of this Court observed that where there is dispute over possession of land and the Civil Court has passed status quo order, the Magistrate is not competent to appoint a receiver under section 146 of the Code after order of Civil Court. It is the Civil Court alone which could determine who was in actual possession of property.

In Jagir Singh v. State of Punjab, 1994(2) RCR 350 it is held that Magistrate appointed a receiver, but nowhere stated in his order that the case was one of emergency or that the dispute was likely to cause a breach of peace.

Similarly, in Tara Singh v. State of Haryana, 1986(2) RCR 559 it is held that where there is dispute over possession of land and Civil Court passed interim order of status quo the Magistrate proceeding under section 145/146 of the Code and attaching the land under section 146 of the Code, such an order is untenable in such a case. Under these circumstances, it is open to the Magistrate to resort to proceedings under section 107 Cr.P.C. if breach of peace is apprehended. It is also observed that there is no indication in the order passed under section 146 of the Code as to when it would terminate and which of the parties or no party was in possession of land.

In Balwant Singh v. State of Punjab, 1995(1) RCR 744 a Single Bench of this Court has held that when civil and criminal proceedings are pending, and there is dispute over possession of property and civil court has passed order maintaining status quo, proceedings under section 145 of the Code cannot be continued when matter was seized of by Civil Court.

In Ram Niwas and others v. State of Haryana, 1992(1) RCR 624 it is held that where there is such a dispute over possession of land and civil court has passed order of status quo, parties are also bound down to keep peace the proceedings under section 145 of the Code are not competent.

In this case, admittedly, status quo order has been passed by the Civil Court. As per Kalendra there is dispute with regard to the possession and ownership of the disputed property. The Magistrate in his order Annexure P5 has mentioned that there is a danger of breach of peace at any time between the parties regarding possession, but he has not specifically mentioned in this order that after the passing of the status quo order by the Civil Court some untoward incident has happened, which has given rise to the said apprehension of breach of peace. In this case, it is evident that even the Civil Court was unable to decide on the basis of the material placed before it as to which party is in possession of the disputed land. Under these circumstances the Civil Court passed the order to maintain status quo. It cannot be said that the order Annexure P5 passed under section 146(1) is passed with the holy intention of protecting the violation of the Civil Court''s order. In view of these facts, if really the Sub Divisional Magistrate thought that there is danger of breach of peace, he could have initiated proceedings under section 107/151 Cr.P.C. in case there was any such emergency. But from the impugned order no such emergency is apparent.

Considering all the facts and circumstances of the case, in my considered view, initiation of proceedings under section 145 of the Code and passing of an order under section 146(1) of the Code, was totally uncalled for and amounts to abuse of process of the Court. No parallel proceedings can be initiated by the police and the Magistrate when such a dispute is already pending before the Civil Court so far as the possession and ownership of the disputed land is concerned.

Resultantly the petition is allowed and orders Annexures P4 and P5 are hereby quashed.